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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hallam, R. v [2012] EWCA Crim 1158 (17 May 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/1158.html Cite as: [2012] EWCA Crim 1158 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE OPENSHAW
and
MR JUSTICE SPENCER
____________________
| R E G I N A | ||
| - v - | ||
SAM HALLAM |
____________________
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
Mr D Hatton QC appeared on behalf of the Crown
____________________
Crown Copyright ©
LADY JUSTICE HALLETT:
murder,
conspiracy to commit grievous bodily harm and violent disorder. The trial judge His Honour Judge Hone QC ordered him to be detained at Her Majesty's pleasure and specified a period of twelve years as a minimum term to be served.
Background
Hallam".
Yet, curiously, in her statement of identification she purported to identify him "as part of the group that attacked Essayas who had with him a baseball bat". It was not clear to us from where the addition of the bat had come. It was plainly a mistake.
Hallam
mentioned and had seen his face, but had not been able to put a face to the name. She claimed to have recognised him as someone she had seen in the crowd outside Somerfield on 11 October attacking the person in the middle. She said that she did not see exactly what he was doing, but she saw him coming away from the crowd. She did not put any weapon in his hand. She told the jury that she had spoken to police at the petrol station after the incident and had given them the names of those people she had seen present at the incident.
Hallam.
It was after this that she told police that Sam
Hallam
had been involved in the incident. Asked why she had not earlier told the police that there had been a white boy whom she had recognised but could not put a name to, she said "Because I didn't know his name". She said that she had concentrated upon those she knew.
Hallam,
she had thought that he must be the Sam people were saying had been there. She said, "I saw someone who looked like him. If it wasn't him, I saw someone who looked like him". Asked, "So the position is it may not have been him but someone who looked like him?", she replied, "Yes". Later she said, "I saw someone that looked like him running towards me and when I was talking to people they told me it was a Sam, and someone told me it was Sam
Hallam
and Sarah pointed him out to me". She agreed that she could not be sure that it was the appellant whom she had seen on the 11th. She did not recall telling PC Redknap that she had seen the deceased being hit over the head by a baseball bat by a black male. She said that if she said that, it must have been in confusion. She agreed that it was her impression that after the group had come away the small black youth whom she saw holding the bat was showing off as if he had been the one who had caused the damage.
Hallam
was involved. Cross-examined further, Miss Henville agreed that in her police interview she had said that she did not recognise anyone who was fighting within the group.
murderer".
He grinned in an evil way. She also alleged that the appellant threatened them both and said that he would petrol bomb her house.
Hallam
whom he knew and with whom he had been at school. He added Sam
Hallam's
name only after Phoebe and others told him that Sam was involved.
Hallam.
Hallam.
He now said this: "I saw a white boy, who I mentioned in my last statement, with the baseball bat arrive on his bike. I said in my last interview that I recognised the boy but could not remember his name. Since that interview I have been reminded of his name by Phoebe. As soon as I was reminded of the boy's name I knew that the boy with the bat was Sam
Hallam".
Unfortunately, this was a significant misrepresentation by the witness of what he had said before. As we have indicated, he had never said he recognised the boy on the bike with the bat, despite being pressed. This was to lead prosecuting counsel unwittingly into error later in the proceedings. Mr Khelfa proffered the explanation that he had revised his account when his friend had died and he had begun to take the incident more seriously. This was despite the fact that he had known all along that his friend was grievously injured and was laying in a coma in hospital. He claimed that what had happened had shocked him and that in his initial interviews he had done what he could to help the police find the attackers of his friend. In his new account he provided a different sequence of events. He claimed that the appellant, whom he had known from school, had been one of those who attacked the deceased. This time he said that the appellant was "virtually standing over him, going to hit him". He also described Ring-Biong as one of the attackers. When he gave this statement he said that he was a hundred per cent positive in his identifications of the appellant and Ring-Biong.
murder
has not exactly helped his cause. He was alerted to the accusations by the two girls on 13 October. When arrested on 20 October 2004 at his home address he told the police that he had been expecting them because he knew what the girls had been saying. He told officers that he had not been present at the incident. He had been playing football with a friend, Timmy Harrington.
murder)
were left to the jury, their cases were as follows. White's case was that he had acted alone when he punched Louis Colley, not as part of a group; he had no idea that anyone had a weapon. Mayers' case was that the jury could not be sure of guilt because the sole witness against him (Bissett) was demonstrably unreliable and inconsistent. Ring-Biong's case was that he had been acting as a peacemaker and had not participated in any violence. The cases for Pellum McCook and Jamie and Danny Martin on count 2 (conspiracy to commit grievous bodily harm) and count 3 (violent disorder) were that they were spectators only and not participants in the violence. Phoebe Henville was described as a "key witness" in each of the cases of McCook and the Martin brothers.
murder,
conspiracy to commit grievous bodily harm and violent disorder. White was acquitted of
murder
by the jury, but convicted on counts 2 and 3. Mayers was acquitted by the jury on all counts. Ring-Biong was convicted on all three counts. McCook and Jamie and Danny Martin were acquitted on count 1 at the direction of the judge, and by the jury on the remaining counts. The judge acceded to a submission of no case to answer on all the counts against Makinde.
(i) the two police messages which record the receipt of the information from Gary Rees and which were not disclosed to the defence;
(ii) material which was not disclosed to the defence in relation to a police search of the home of an uncharged suspect (a black male named Tyrone Isaacs), named by Ring-Biong in evidence as having been with him at the start of the incident. When Isaacs' home was searched on his arrest on 24 November 2004 police found a mobile telephone that lacked a back, as did the telephone lost by Mr Colley during the incident. They also found a broom handle with a nail protruding from its end.
(iii) Evidence from the appellant's mobile phone which suggested both his and Harrington's memories were at fault and the alibi may not have been dishonest. Post-trial analysis of the appellant's mobile telephone has revealed previously undiscovered material, including photographs taken on the afternoon of 11 October at the home of the appellant's grandmother, and of the appellant's father (now deceased) at the George and Vulture public house at 18.41. The phone's memory also contains a photograph of Timmy Harrington taken on the afternoon/ evening of 12 October 20024. It is said that these photographs may have provided support for the appellant's contention that he was elsewhere on the night of the incident and provide a credible explanation for his belief that he was with Timmy Harrington.
(iv) Potential fresh evidence from Makinde to the effect that, as he has always maintained, he saw the appellant standing outside the George and Vulture public house after he (Makinde) left the scene of the incident, that he told the appellant about the incident, and that the appellant told him that he had been at his grandmother's house.
(v) Potential fresh evidence from Mwesezi that the appellant was not present at the incident. Further, his account of the sequence of events might undermine Phoebe Henville's account and suggest that she could not have seen the attack upon the deceased.
"When in the judgment of the trial judge the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal, unless there is other evidence which goes to support the correctness of the identification."
The second is at page 220G:
"Care should be taken when directing the jury about the support for an identification which may be derived from the fact they have rejected an alibi. False alibis may be put forward for many reasons. An accused, for example, who has only his own truthful evidence to rely on, may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions, like any other witness can. It is only when the jury are satisfied that the sole reason for the fabrication was to deceive them and there is no other reason for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was."
"This is a case which has some of the familiar ingredients of a miscarriage of justice: flawed identification, flawed alibi, non-disclosure, and failures in the police investigation."
He went further and argued that there is a body of evidence to lead to the conclusion that, as the appellant claimed from the moment he was arrested, he was not present at the scene and is, therefore, innocent of the offences of which he was convicted. Mr Blaxland specifically invited the court to make that plain in this judgment. He relied upon a passage from the judgment of Lord Judge CJ in R v Adams [2011] UKSC 18, [2011] 3 All ER 261 (at paragraph 251) in which the court's powers in this respect are set out. As will become apparent, we were not satisfied it would be appropriate to use that power on the facts of this case.
Hallam
was not involved. He has seen stills from CCTV footage on the night in question and can identify some of those present. His account, if accepted, would suggest that Phoebe Henville was not in a position to observe the assault on the deceased, and would lend support to the argument that if she saw anything, it could only have been the attack on Mr Colley.
Hallam.
Further, the impression given at trial was that the rumours circulating were in relation not just to someone called Sam, but specifically to Sam
Hallam.
In fact, Phoebe Henville went so far as to claim that she had heard it was Sam
Hallam
who was involved. That was how the judge summarised her evidence to the jury. Mr Blaxland argued that there was a real danger that the rumour was taken by the jury as providing further support for the correctness of the identification. The judge omitted to direct the jury that this was not the case. Mr Blaxland submitted that these messages, had they been available to the defence team at the time, would have corrected this false impression.
Hallam
was not the rumoured culprit; and second, that there was some further possibility of collusion between the witnesses as to naming the person they thought was responsible. Mr Blaxland further argued that the disclosure could have led to the defence's establishing a connection between a person rumoured to be involved in the crime and the theft of mopeds, through the link to the address provided for Sam Bass. Had that been known, Miss Henville could have been cross-examined about what she said about seeing the person on the street causing trouble and that that person was known for "nicking mopeds". As we have indicated, this was not a description which fitted the appellant.
Hallam
cast considerable doubt on the possibility that the two were the same.
murder
it was brand new and state of the art.
murder
which might have jogged his memory and helped establish his whereabouts.
murder
of an innocent young man and participating in the attack upon that young man. The appellant gave a firm alibi to the police, having been alerted just two days after the
murder
to the possibility that he may be questioned. That alibi was investigated. The evidence suggested to those investigating that the appellant had tried to put forward a false alibi. When it was proved false, he still could not establish his whereabouts, even though it was only a matter of weeks after the incident. The appellant then repeated that alibi at trial, despite knowing of Makinde's assertions in interview that he had seen the appellant outside the George and Vulture some 45 minutes after the events and that the appellant had told Makinde that he had been "at his Nan's". Yet the George and Vulture was not raised at any time by or on behalf of the appellant; nor was the proposition that he had been "at his Nan's". Presumably, the appellant was well aware that he had owned a new phone on which he had taken lots of photographs.
Hallam was involved. In any event, the purported recognition or identification of the appellant took place in very difficult circumstances. It amounted to little more than a fleeting glimpse. Thus, even if the witnesses had remained rock solid, consistent with each other and with the evidence of other witnesses, there was scope for a case of mistaken identity. Proper independent supporting evidence was essential on the facts here.
MR HATTON: There is no application.
LADY JUSTICE HALLETT: In which case there will be no retrial.
MR BLAXLAND: I have one application and that is for an extension of the representation order to cover the work carried out by my instructing solicitor. He has also assisted us by attending court. We have a witness whom we proposed to call yesterday and he needed to attend.
LADY JUSTICE HALLETT: Yes, we are satisfied that there should be a full representation order for your solicitor, as long as somebody points out that whoever physically prepared the documents, they could have done a better job.
MR BLAXLAND: Yes. I could offer mitigation, but it is probably not the time or the place to do that.
LADY JUSTICE HALLETT: It probably is not, Mr Blaxland. Thank you all very much.
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