Gray, R v, Court of Appeal - Criminal Division, September 27, 2018, [2018] EWCA Crim 2083

Resolution Date:September 27, 2018
Issuing Organization:Criminal Division
Actores:Gray, R v
 
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Case No: 201702615

Neutral Citation Number: [2018] EWCA Crim 2083

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Central Criminal Court

HHJ Moss QC

T20167458

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27 September 2018

Before:

LADY JUSTICE THIRLWALL

MR JUSTICE WILLIAM DAVIS

and

HHJ DICKINSON QC

SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION

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Between:

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Mr J McGuinness QC (instructed by CPS) for the Crown

Ms S Bennett-Jenkins QC (instructed by GT Stewart Solicitors & Advocates) for the Defendant

Hearing date: 17th July 2018

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JudgmentLADY JUSTICE THIRLWALL:

  1. This is the judgment of the court to which we have all contributed. Antoin Gray is 24. On 10 May 2017, when he was 22, at the Central Criminal Court he was convicted of murder and sentenced to life imprisonment; the period of 17 years (less time on remand) was specified as the minimum term under s.269 Criminal Justice Act 2003.

  2. Two other young men, Jeramiah Johnson and Codie Goodensimms were also convicted of murder. They each received the same sentence as the appellant.

  3. This is Gray's appeal against conviction which he brings on a single ground by leave of the single judge. A renewed application for leave to appeal on a further ground upon which the single judge refused leave was abandoned. Other grounds were abandoned at an earlier stage.

    The facts

  4. The murder took place on 11 September 2016, at around 7.50pm. The victim, Tobi Animashaun left work at a Sainsbury's depot in Charlton, London. Three vehicles had parked close to the exit shortly before Mr Animashaun came out of the building. As he left the depot a young man from one of the vehicles confronted him. Other young men joined the initial aggressor. They were armed with machetes, knives and baseball bats. They attacked the victim until he collapsed, suffering a number of serious injuries including two fatal stab wounds. The assailants fled in their vehicles and the victim was taken to hospital by ambulance. He died the following afternoon.

  5. It was the prosecution case that the appellant and his co-defendants were at the scene, encouraging it. It was not suggested that they were principals in the attack.

  6. Mr Animashaun had associated with a gang known as `T-Block'. Johnson and Goodensimms were associated with a rival gang known as the `Cherry Boys'. In April 2012, Goodensimms had been the victim of an assault in which he was stabbed with a metal skewer. Three men, including Mr Animashaun and Olawale Kolebaje, known to others as `Hitman', were convicted in relation to that attack. There was no evidence that the appellant was associated with any gang.

  7. It was the prosecution case that Johnson and the appellant were together in Johnson's car prior to the attack. They then collected Goodensimms from his home address. Just before collecting Goodensimms, Johnson sent him three WhatsApp messages:

    a) ``Mans coming urs that calm''

    b) ``I'm wid lush''

    c) ``Push''.

    The prosecution said this translated into an announcement to Goodensimms that Johnson was coming to collect him and that Push was with Johnson. `Push' was a nickname ascribed to the appellant - one of his Facebook accounts was in the name of `Little Maner (Push Thaa Don Gray)'. Johnson had also saved a number ascribed to the appellant under the name `Push' in his mobile phone.

  8. The prosecution alleged that the three men travelled to the scene of the attack in Johnson's car, a silver VW Golf registration number LL54 AOF. This was one of the three cars parked by the Sainsbury's depot minutes just before Mr Animashaun left work.

  9. In addition to the WhatsApp evidence to which we have already referred, the prosecution relied upon:

    i) CCTV and Automatic Number Plate Recognition evidence showing the movements of the car said to be Johnson's. The car was seen arriving at Goodensimms' home address at around 6.44pm and later arrive and park by the Sainsbury's depot.

    ii) Mobile phone contact and cell site evidence corroborating the evidence of the movement of Johnson's car and its occupants.

    iii) The evidence of Michael Griffin, an eye witness. He worked at the same depot as the victim and left work at the same time. He witnessed the attack.

    iv) Other eye witnesses who described a car bearing a registration number which included LL54/45 driving away from the scene.

  10. It was the defence case that the appellant was not at the scene.

    Identification parades: Agreed Facts.

  11. There were a number of agreed facts before the jury. Video identification parades were held in respect of a number of defendants. One witness, Michael Griffin, attended on four occasions. On the first occasion Johnson's image was part of the parade. Mr Griffin picked out the image of a volunteer and said ``If he's the one I'm thinking of he is the main instigator of it all. Happened so fast but his face is familiar.'' On the second occasion when Goodensimms' image was part of the parade Mr Griffin picked out a volunteer, saying that he was ``the one that kept us away from helping Toby. A machete he kept swinging at us.'' On the third occasion the image of another suspect, Curtis Barrow was in the parade. Mr Griffin picked out a volunteer and said that he had ``stopped us going towards Toby by brandishing and swinging a machete''. We set out the detail of his identification of the appellant below.

    Eye witness evidence at trial

  12. Michael Griffin knew the victim as a work colleague. As he left the depot, he saw a group of five to seven men outside looking at the people leaving the depot. He noticed a blue BMW, a grey Astra and a grey Golf. He went onto a grass verge for a smoke. He saw the victim come out of the depot gate. Mr Griffin said that one of the men asked the deceased, ``Are you about this life?'' The deceased replied, ``Yeah, I work here.'' The same man asked, ``Are you Hitman's boy?'' and the deceased replied, ``Yes''. He appeared nervous. The man who had spoken to him went to retrieve a baseball bat from the blue BMW. The other men present also went to their cars and returned with bats, knives and machetes. They began to chase Mr Animashaun towards the grass verge and so towards the witness. One of them, who was armed with a knife was lunging at the deceased. Another man, a mixed-race man in a blue Adidas top, was swinging a machete in the direction of the witness. Griffin thought he was about 6 feet away from him. A chain worn by the man with the machete fell to the ground, he bent down and picked it up, while still wielding the machete. (DNA on sections of the chain found at the scene was Johnson's). By this stage the victim was on the ground. The aggressors left in their cars.

  13. Mr Griffin told the jury that he had attended the police station and viewed photographs on four occasions. On the fourth occasion, he attended an identification parade where he identified the appellant as being part of the group of people who were present at the attack. When giving evidence in chief he said that he was ``concentrating on not getting his face cut off'' by the man with the machete at the time he saw the appellant, but he did remember the appellant from the scene when his face was shown during the identification procedure. He identified the appellant as being part of a group that went over towards the deceased. The man he identified as the appellant was looking up at him. He observed him for...

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