Ferdinand & Ors v R, Court of Appeal - Criminal Division, June 20, 2014, [2014] EWCA Crim 1243

Issuing Organization:Criminal Division
Actores:Ferdinand & Ors v R
Resolution Date:June 20, 2014
 
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Case No: 201203251 B1, 201301484 B1,

201203253 B1, 201203252 B1

Neutral Citation Number: [2014] EWCA Crim 1243

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

26 April 2012 at the Central Criminal Court

before His Honour Judge Wide QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/06/2014

Before :

LORD JUSTICE PITCHFORD

MRS JUSTICE NICOLA DAVIES DBE

and

THE RECORDER OF CARDIFF (Her Honour Judge Eleri Rees)

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Between :

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MFR Holland QC (instructed by Needham & Partners - Solicitors) for the 1st Appellant

H C Grunwald QC (instructed by CLP - Solicitors) for the 2nd Appellant

M Birnbaum QC (instructed by Mackesys - Solicitors) for the 3rd Appellant

B Richmond QC (instructed by Sonn MacMillan Walker - Solicitors) for the 4th Appellant

N P Moore (instructed by CPS - Crime Appeals Unit) for the Respondent

Hearing date: 22 May 2014

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JudgmentLord Justice Pitchford:

Introduction

1. On 26 April 2012, following a trial at the Central Criminal Court before His Honour Judge Wide QC, each of the appellants was convicted by the jury of count 1, charging them with the murder on 20 April 2011 of Milad Golmakani, and count 2, on the same occasion, the attempted murder of Zain Salah Uddin. On the same day the appellants Sean Hutton, Sean Ferdinand and Mohammed Hashi were sentenced to detention for life for murder with a minimum term of 22 years. Concurrent terms of 17 years detention were imposed for the offence of attempted murder. For the offence of murder Lij McSween was detained at Her Majesty's pleasure with a minimum term of 19 years; for the offence of attempted murder he was ordered to serve 14 years detention in a Young Offender Institution. Although making no practical difference to the period to be served, the latter sentence should have been announced as a period of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We shall order the appropriate correction.

2. Lij McSween was born on 15 August 1994. He lived at Maitland Park Road, London NW3. He was aged 16 years 8 months at the time of the alleged offences (``the relevant time''). He was represented at trial and in the appeal by Mr Grunwald QC. Sean Hutton was born on 5 May 1992. He lived at Malden Road, London NW5. He was aged 18 years 11 months at the relevant time. At trial and in the appeal he was represented by Mr Richmond QC. Sean Ferdinand was born on 30 June 1992. He lived at Gilbey's Yard, London NW1. He was aged 18 years 10 months at the relevant time. He was represented at trial and in the appeal by Mr Holland QC. Mohammed Hashi was born on 21 January 1993. He lived at Agricola Place, Enfield. He was aged 18 years 3 months at the relevant time. He was represented at trial and in the appeal by Mr Birnbaum QC.

The grounds of appeal

3. The appellants Lij McSween, Sean Hutton and Sean Ferdinand have leave from the single judge to pursue grounds 1 and 2, each of which concerns the decision of the trial judge to admit in evidence the hearsay statements of Bajrmshame Hashani. It is contended that the judge had insufficient evidence on which to make a finding that Ms Hashani was ``unfit to be a witness because of her bodily or mental condition'' for the purpose of section 16(2)(b) of the Criminal Evidence Act 2003; secondly, that the effect of the judge's decision was unfairly to permit the prosecution to undermine the credibility of its own witness, whose statement of evidence in the form provided by section 9 of the Criminal Justice Act 1967 had already been read to the jury by agreement.

4. The appellants McSween and Ferdinand advance further grounds of appeal 3 and 4 that have been referred to the full court by the single judge. It is contended that the prosecution, without the leave of the trial judge, elicited from Sean Hutton during cross-examination that the night before the murder of Milad Golmakani he had been in the Pimlico area of London dealing in class A drugs. It is submitted that in so doing the prosecution adduced bad character evidence whose effect was to undermine an understanding between the prosecution and defence that evidence of motive would not be introduced, to the unfair prejudice of the cases of McSween and Ferdinand.

5. The appellant Ferdinand seeks to renew ground 5, namely that the judge in his summing up misdirected the jury as to fact when summarizing the evidence in his case and failed when so invited to make a full or adequate correction.

6. The appellants Ferdinand and McSween seek leave to rely upon a new ground of appeal (that we shall call ground 6), namely that the fresh evidence of an eye witness, Milos Charlesworth, should be admitted in the appeal pursuant to section 23 of the Criminal Appeal Act 1968. Should the evidence be admitted it would cast doubt upon the identification of the appellants' group as that which attacked and wounded Milad Golmakani and Zain Sala Uddin. It therefore affects the position of all four appellants.

7. The appellant Hashi challenges his conviction on the ground (which we shall call ground 7) that the expert evidence of a consultant podiatric surgeon, Mr Barry Francis, was flawed so as to render unsafe the jury's conclusion that Hashi was present and participating in the attack on the victims.

8. Finally, Lij McSween's application for leave to appeal against the minimum term of 19 years imposed in respect of count 1 has been referred to the full court.

The cases at trial

9. At 4.30 pm on 20 April 2011 Milad Golmakani, Zain Salah Uddin and several other youths of various ages had congregated in and in the vicinity of the fenced basketball and games court alongside Sandbourne House, Abbey Road Estate, Kilburn in north London. At the same time a taxi summoned by the appellant Hutton arrived and parked at Boundary Road, on the adjoining Rowley Estate. At 4.33 pm CCTV cameras captured four young men, including Hutton, walking from Boundary Road towards the basketball court. Their route took them alongside Stevenson House to Langtry Walk. All four were wearing dark jackets with hoods. It was the prosecution case that the four men captured on CCTV were the appellants. During their walk along Langtry Walk Hutton left the group and returned to the taxi to instruct the driver, Mr Gurhey, to drive the car closer to the basketball court. Hutton's purpose was, the prosecution contended, to facilitate the escape of the group from the scene of an attack that he knew was imminent. Between 4.36 pm and 4.39 pm CCTV captured the remaining three members of the group walking along Langtry Walk, across Abbey Road and, thence, into Abbey Road Estate. They emerged into the area outside the basketball court through a passageway under Sandbourne House. Meanwhile Mr Gurhey and Hutton travelled in the taxi to a position on Abbey Road at the entrance to the estate. Hutton left the taxi and, at 4.42 pm, followed his three companions into the estate.

10. The prosecution was unable to assign specific roles to any one of the appellants save for Hutton who had ordered the taxi and made preparations for the group's escape. It relied upon the inference that anyone proved to have been a member of the hooded group entering Abbey Road Estate at 4.40 pm did so for the purpose of carrying out, with knives, a murderous attack on the deceased and others. Witnesses described a group of men wearing jackets with their hoods up entering Abbey Road from the direction of Sandbourne House. They chased Milad Golmakani and Zain Salah Uddin out of the basketball court and attacked them with knives. Mr Golmakani suffered fatal wounds. It is probable that two knives at least were used to inflict Mr Golmakani's wounds. Mr Salah Uddin, while stabbed from behind in the area of his right shoulder, was able to run from the estate and was captured on CCTV doing so at 4.43 pm. At the same time four men were seen on CCTV returning to the taxi as Mr Gurhey was making a turn. At Hutton's instruction the taxi took the group to the vicinity of St Mary's Church in Primrose Hill. At the youth centre a barbeque commenced at 4.00 pm.

11. Hutton and McSween admitted that they were members of the group captured on CCTV entering and leaving the Abbey Road Estate. Their case was that they had visited the Estate looking for a man called `Smokey' from whom to make a purchase of cannabis. They claimed that they were accompanied by two youths known only to them as `Toothpick' and `Iceman', and not by Ferdinand and Hashi. McSween gave evidence that he was the first to enter the Estate. As he approached the basketball court a group of five or six males approached from his left and attacked him. He was punched to the face. Someone aimed a blow with a knife. McSween claimed that he put up his hand in a defensive manner and the knife made contact causing a cut that bled profusely. He immediately ran back to the taxi in the direction from which he had entered the estate. As he ran McSween left a trail of blood spots subsequently analysed to establish his identity. Ferdinand's fingerprints were lifted from the rear passenger window of the taxi. His defence at trial was alibi. He said he had been attending the barbeque at St Mary's Church youth centre. Ferdinand said that the discovery of his fingerprints was mere coincidence; he had used the same taxi firm, Fleet Cars, on many previous occasions and it was not possible to date a fingerprint. The prosecution also relied on cell site evidence to establish the movement of Ferdinand's mobile phone towards and away from the scene of the attack at the relevant times. Ferdinand and Hutton both claimed in evidence that this too was coincidence. At Hutton's request Ferdinand had lent his phone to Hutton at about 1.30 pm and Hutton returned it at about 5 pm at St Mary's Church youth centre. The cell site evidence established only Hutton's and not Ferdinand's...

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