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Citation no. (2000) 2167 |
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NICE3182 |
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Judgment: approved by the Court for handing down |
Delivered: |
05/06/00 |
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(subject to editorial corrections) |
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IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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THE QUEEN
v
DARREN ROBERT STEWART
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NICHOLSON LJ
Introduction
The appellant was convicted of murder at Belfast Crown Court on 12 May 1999 after a trial before Campbell LJ and a jury on the first count of an indictment, whereby he, Martin Chappell and Peter James Davies were charged with the murder of Desmond Christopher Moonan ("the deceased").
The judge sentenced the appellant to imprisonment for life. He now appeals to this Court against conviction and sentence.
The Course of the Trial
1. The Crown Case
The Crown contended throughout the trial that on the night of Wednesday 13 August 1997 or early morning of Thursday 14 August 1997 the appellant, Chappell, Davies and the deceased were present in a flat at 906 Newtownards Road, Belfast of which the appellant was the occupier. Their case was that the deceased was attacked with punches and kicks and had then been strangled.
A state pathologist gave evidence that punches, blows and kicks suggestive of stamping by the sole of a shoe or boot had caused bruising and abrasions of the head, facial area, back, chest, arms and legs of the deceased and that four ribs on the right side of his chest had been fractured. He had then been strangled with a ligature. Admission made by the appellant at interviews with police officers and forensic and other evidence were relied on to establish a prima facie case against the appellant.
The Crown case against the appellant became plain as a result of cross-examination of him by Crown Counsel. He had given evidence that Chappell was the first of the three to strike the deceased in the living room of the flat and had then gone into the kitchen; that Davies started kicking him and pulling him onto the floor; that the appellant also kicked and punched him; that Davies, having attempted to strangle him with telephone cable, went to the bathroom, got a towel and proceeded to choke him with it. The three men then left the flat. The appellant returned to take away a bag containing the towel and rejoined the other two men.
Counsel for Davies cross-examined him and at one stage said:-
"Q. I cannot put an account to you because I don't have an account to put to you so therefore I'm going to ask you the following, when you went back to that flat, did you get the towel from the bathroom, rip the edge of it, and strangle [the deceased]?
A. No."
In the course of cross-examination by Senior Crown Counsel he was asked:-
"Q. Now, just as a minimum let's deal with this, you didn't intervene in any way did you?
A. No.
Q. Or tell Davies not to do it?
A. I told him to stop, he'd had enough."
Shortly afterwards he was asked:-
"Q. And you stayed there, didn't you?
A. Yeah.
Q. Knowing it was going to happen?
A. Yes.
Q. And it did happen?
A. Yes it did.
Q. In front of you?
A. Yes."
At no time was it suggested by Crown Counsel that he strangled the deceased either in the presence of Davies or after he came back to the flat when he was alone with him. In his closing speech junior Crown Counsel contended that the appellant had assisted and encouraged Davies to strangle the deceased. He told the jury:-
"... There was no attempt by Stewart to stop Davies doing what he said he was doing ... He continued by all the objective evidence and all the evidence you have heard from the witness-box to act in concert with Davies both before, during and after the attack and certainly after the killing. ... in other words, there is no clearer evidence that he was actively encouraging the murder by his presence ... There's not a shred of evidence to support that suggestion [that Stewart returned to the flat on his own and strangled the deceased] or to enable you [the jury] to draw that inference from the evidence ... the overwhelming preponderance of the evidence points to Davies as the man who did the job ..."
2. The Conduct of Davies' Defence
Police officers gave evidence of interviews with the appellant in the course of which he gave varying accounts of events before, during and after the incident in the flat which led to the death of the deceased. In the course of these interviews he alleged that Davies had strangled the deceased. Counsel for Davies cross-examined the police officers. Comments in the form of questions were made. There were questions as to why the police had asked questions. There were questions which suggested that statements by the appellant to the police were facts in evidence in the trial. Selective transcripts of the police interviews were shown to the jury and questions were asked in order that the police interviewers would repeat selected portions of what had been given in direct evidence by them. During the course of cross-examination the judge did his best to control counsel. But for almost two days he cross-examined the police officers, providing a sort of running commentary on evidence which the police officers had already given and which they were required to repeat.
In his closing speech the jury were told by counsel for Davies that Davies had no memory of that night, that he might be a person who got into the odd fight but nothing akin to the crime with which he was charged and that there was no point in him going into the witness-box to try to remember something which he could not remember. At one stage he said:
"Mr Davies told the truth to the police ... without number ... He is a person ... with no memory of the events under consideration today ... While Mr Davies may be a person who gets into the odd scrap the odd scuffle and the odd fight there's certainly nothing of the appalling photographs that you've had to look at in this case ...".
In fact there was no evidence before the jury that Davies could not remember the events under consideration and he had a bad criminal record.
3. Submissions by Counsel
During the course of a submission by Counsel for the appellant that there was no case for the appellant to answer on the charge of murder the following interchange took place:-
The judge:-
"... there was an even greater suggestion, more innuendo, I suppose in [Counsel for Davies'] cross-examination ... that he went back and that he strangled him, because he was still alive ... Well the fact that its being put in questions the question isn't in evidence."
Counsel:-
"I appreciate that."
The judge:-
So I don't think that there's any problem with that."
An interchange with counsel for Davies also took place:-
The judge:-
"... no prosecution witness has said that Mr McDonald's client strangled this man."
Counsel:-
"That's correct, My Lord."
The judge:-
"Indeed, no witness in the trial has said that ... if you want to suggest (and I think that's the furthest it could be) that there was an opportunity for Mr Stewart to have strangled this man ... there's no evidence to say that Stewart strangled him ..."
He told Davies' counsel that he could close his case to the jury on the basis that there was an inference that Stewart strangled the deceased.
4. The Summing-up
In the course of his summing-up the judge gave a direction to the jury about joint enterprise and said:-
"If you find that Stewart and Davies each joined in the attack in circumstances which showed that they intended to cause really serious injury to Mr Moonan and as a result of the attack he sustained the fatal injury they're both jointly liable for murder ... if you find on the other hand that the injury inflicted with that intent was caused solely by the actions of one of them and that it was of a type entirely different from the actions which the other foresaw as part of the attack only that participant is guilty of murder and [if] that one person was Stewart and the prosecution again has failed to prove the absence of provocation then murder would be reduced to manslaughter ... if you find that the injury was caused solely by the actions of one person and that was by a person producing as we all know in this case a ligature ... which the other person didn't foresee then the person who was responsible for that would be on his own as it were and he alone would be guilty. And as I have just repeated again if that one person, for example, was Stewart then if the Crown has failed to prove the absence of provocation then in his case the murder would be reduced to manslaughter ... Now there is one other situation ... if you found ... that one person was guilty of murder or had actually caused the death, then Stewart could be ... an aider and abettor ..."
Provocation was left to the jury with the tacit consent of counsel for the appellant.
4. The Co-accused
Neither Chappell nor Davies gave evidence. At the end of the trial the judge directed the jury to find Chappell "Not Guilty" of murder and on a second count which was added to the indictment, Chappell pleaded guilty to causing grievous bodily harm to the deceased with intent, contrary to Section 18 of the Offences Against the Person Act 1861. Davies was acquitted by the jury.
The Course of the Appeal
There were a number of grounds of appeal based on the conduct of Davies' counsel and submissions were made to this court on them. It is unnecessary to deal with them. But the cross-examination of the police officers and the closing speech on behalf of Davies were highly prejudicial to the appellant and exceeded all reasonable limits.
The central issue on the appeal was whether the judge was entitled to direct the jury that as against the appellant they were entitled to find that he had strangled the deceased.
It was submitted on behalf of the appellant that the jury must have decided that the appellant strangled the deceased when he returned to the flat and was on his own with the deceased. This was inconsistent with the Crown case that the appellant was a secondary party. The jury did not give proper consideration to the issues which they had to decide as against Stewart. They were deflected from doing so by the failure of the judge to tell them clearly what the case against Stewart was and the evidence on which it was based. He did not tell them to ignore the suggestions of Davies' counsel in cross-examination and in his closing speech when they were dealing with the case against Stewart.
Crown counsel conceded that it was difficult, if not impossible, to contend that the jury had found the appellant guilty of aiding and abetting the murder, which was the Crown case against the appellant. Notwithstanding the verdict of the jury, the Crown did not now assert that the appellant returned to the flat and killed the deceased as counsel for Davies had contended before the jury.
Our Conclusions
In our opinion the judge should have directed the jury to consider the case against the appellant solely on the issue of joint enterprise or aiding and abetting as a secondary party. Instead he directed the jury that they were entitled to find that the appellant had strangled the deceased.
Under the former law governing criminal appeals there were instances in which verdicts were quashed on the ground of material irregularity where the judge summed-up on a basis which the prosecution had not opened or pursued at trial: see R v Lamb (SJ) (1974) 59 Cr App R 196, R v Hazell [1985] RJR 369, R v Gregory (1983) 77 Cr App R 41, R v Lunn [1985] Crim LR 747 and R v Feeny (1992) 94 Cr App R 1. In R v Clegg (Unreported: 31.1.00) this Court held that these authorities are relevant when considering whether a conviction is safe.
In his summing-up he did not tell the jury that in their consideration of the case against the appellant they should ignore the suggestion by Davies' counsel in his closing speech that the appellant returned to the flat and strangled the deceased. He himself suggested to the jury that the appellant might have strangled the deceased in the presence of Davies although there was no evidence that this had happened. As the Crown case against the appellant was solely that he aided and abetted Davies, the judge summed-up on a basis which the prosecution had neither opened nor pursued. The verdict of the jury whereby they convicted the appellant and acquitted Davies was only consistent with a finding by them that the appellant strangled the deceased. It follows that they did not determine the issue whether he was a secondary party to the murder. Accordingly the conviction is not safe and must be quashed.
If there is a re-trial the issue of provocation should only be left to the jury if there is some evidence on which a reasonable jury could find that the appellant was provoked.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
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THE QUEEN
v
DARREN ROBERT STEWART
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JUDGMENT
OF
NICHOLSON LJ
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