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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dorling, R. v [2007] EWCA Crim 1579 (12 June 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1579.html Cite as: [2007] EWCA Crim 1579

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		12th June 2007

1. MRS JUSTICE DOBBS: On 19th April 2006 at the Central Criminal Court this applicant was convicted of murder and sentenced to life imprisonment with a minimum term of 25 years, less 349 days spent on remand. The co-accused, John Gordon, was acquitted and another accused, James Pearson, was convicted by the jury of conspiracy to wound with intent to do grievous bodily harm.
2. This applicant renews his applications for leave to appeal against conviction and sentence after refusal by the single judge.
3. On Tuesday 10th December 2002 Aaron Chapman, the deceased, a former prison officer, was attacked with a knife at his Surrey home. He called for an ambulance, which arrived some minutes later with the police. Although seriously injured, he was able to describe his attackers to the police. One had been a black male and the second had been a white male. He had not known his attackers.
4. The following day he died from multiple stab wounds to the heart and liver.
5. 22 months later, on 13th October 2004, this applicant was arrested.
6. It was the prosecution's case that the applicant had confessed to the stabbing. It was their case that the attack had been ordered by other criminals, and that the applicant had been recruited for a fee of £10,000 to seriously wound the deceased by "striping" him, in order to teach him a lesson for some perceived wrong he had caused.
7. The evidence against the applicant came from four sources. There was confession evidence, which came from an associate of the applicant called David Duff, and the applicant's former girlfriend, Sarita Williams, who both said that he had confessed to them that he had stabbed somebody. There was the evidence of the co-accused, Mr Pearson, which placed the applicant at the scene of the crime on the relevant day. Mr Pearson said that the applicant had picked him up on that day. They had gone to the deceased's home in the evening. Nobody was in. Then later the applicant picked up Mr Pearson, again having dropped him off, and they drove to an area near the deceased's home. The applicant left Mr Pearson and then later returned five minutes later, holding his arm and shouting he had been chased with by a man with knife. They drove to Mr Duff's house for the applicant to get a bandage. There was cell site evidence which put the applicant within the vicinity of the deceased's home prior to the offence, and there were some calls in custody relied upon, where telephone conversations demonstrated the applicant's concern about the case. Finally, there was the no comment interview.
8. The defence case was that the applicant had not been present at the scene and he had never confessed to anyone that he had stabbed the deceased. The evidence of the prosecution witnesses was false as they had their own motives for implicating him. The defence also relied on the lack of scientific evidence linking him to the deceased or the scene of the crime.
9. There are six grounds of appeal. Some are repetition of the grounds before the single judge and three are additional grounds formulated by counsel now before us, who was not counsel originally instructed at the trial. We deal with each in turn.
10. The first ground is that the learned judge failed to provide the jury with a balanced summary of the evidence of the defendant's case. The essential complaint is not that the judge ought to have rehearsed the applicant's case blandly and uncritically, but because this was a cut-throat defence, so far as Pearson in particular was concerned, in order to redress the balance, the applicant's case needed to be summed-up fairly, giving full and fair weight to the evidence and arguments of both sides. It is said that the judge did this for the other co-defendants but failed to do so for this applicant.
11. Having read the full transcript of the summing-up, the single judge noted that the summing-up was a full treatment of the evidence. He observed:

"Of necessity, because there was more evidence against you than either of the other two defendants, the summing-up reflects an element of imbalance. That is not a reason for criticism of it.

There was a powerful case against you in the form of the evidence of Williams, Duff and your co-defendant Pearson."

12. With regard to the detailed criticism that the judge did not make all the defence points and did not sufficiently emphasise the absence of forensic evidence, the single judge noted that:

"It is not for the Judge to make the defence speech but to reflect in his summing-up the weight of the case for and against each defendant."

13. We agree with those sentiments and take the view that, taken as a whole, the judge did not fail to provide a balanced summing-up of the defence case, because the defence response to all the essential allegations made were set out in the summing-up, including putting the essence of the defence case. The judge made it clear, during the various interludes when counsel raised matters arising from the summing-up, that matters could be raised and that he had to be fair to the parties. There were no specific complaints about unfair treatment as compared to the co-defendants.
14. The second ground is that the learned judge failed to provide the jury with a balanced summary of the evidence of Sarita Williams. In particular, he failed to inform the jury as to why they should approach her evidence with caution. He failed to direct the jury properly, or at all, in relation to her allegation that the applicant had raped her.
15. The thrust of the complaint is that there was an unbalanced summary because the judge presented the jury with a picture of woman who was very close to the applicant and in whom he would have confided. It is said that the defence case was that she was an opportunist and skilled in the art of the deceit. It is to be noted that during the summing-up the judge told the jury: (a) that it was for them to decide about her evidence and for them to decide if she was being truthful or not. The picture of closeness was only one to be relied on if the jury formed the view that she was a truthful witness. It was not one-sided, therefore.
16. With regard to the caution, in his introductory directions (in Volume I of the transcripts) the judge gave direction of the need for special caution with regard to Mr Duff, Mr Pearson the co-defendant, and Miss Williams. He then went on to make further comments about credibility and the need for caution in relation to each of these individuals at some length (transcript Volume I, pages 47-52).
17. The judge also made it clear what the defence case was in relation to Miss Williams, having in Volume II reminded the jury again for the need for caution. He deals specifically with Sarita Williams at Volume II, pages 5-8 onwards. It is said that although the judge does deal with the need for caution, he does not give the jury the reason why they have to be cautious. If one looks at the way the judge introduced the matter, he did so within the context of the history of the relationship between the applicant and the witness Miss Williams. Therefore, as a matter of common sense, it would be obvious to the jury how the matter was put. Indeed, as already indicated, the judge made clear to the jury what the defence case was in relation to her.
18. Dealing with the allegation of rape by Miss Williams, the judge dealt with the matter when dealing with Miss Williams' evidence. He referred to the allegation, reminded the jury that there was no charge, but said that they could have regard to it if it had its part to play in the relationship between Miss Williams and the applicant. However this has to be put in the context of the judge's directions on bad character in relation to the applicant, which are dealt with at Volume I, pages 55 onwards.
19. When dealing with the question of previous convictions and evidence of reprehensible behaviour, the judge, although not referring specifically to the rape allegation at that stage, directed the jury that, save for the specific convictions, to which he referred, which showed a propensity to violence, for which he gave the jury the appropriate direction, all other matters went only to credibility. At page 55 onwards he gives the appropriate direction in relation to that. No complaint was made at the end of the summing-up in relation to this issue, and if one looks at the summing-up it is clear that it did not feature as an important part of the Crown or the co-defendant's cases.
20. The third ground is that the judge failed to address the jury in relation to the absence of scientific evidence as against the confession evidence provided. The judge deals with forensic evidence in various parts of the summing-up. There is at Volume II, page 22, a specific and very clear reminder to the jury that it is the case of the applicant that there was a complete lack of scientific evidence to implicate any of the three defendants. Further on in the summing-up, the judge made it clear that there was no scientific evidence in relation to the car which the applicant was said to have driven. The judge also emphasised that the essence of the case against the applicant was the confession evidence, which was relied on by the Crown. In our view, the judge was not obliged to go any further than he did.
21. The fourth ground, which is a new one, is that the judge failed properly to direct the jury as to how it should approach the applicant's failure to answer questions in interview. It is said that the judge failed to specify the facts relied on in the interview. It is to be noted at Volume II, page 26 onwards, that the judge gave an extremely long and detailed direction about this aspect and emphasised the need for care. At page 26, letters B to C in particular, the judge identified quite clearly the issues for the jury in relation to this aspect. Not only that, he reminded the jury of cross-examination by the Crown and the other parties. It is quite clear again that the failures played little part in the case overall.
22. Counsel before us is not in a position of course to identify any other issues which should have been put to the jury. It is to be noted that trial counsel, who had corrected the judge on a number of occasions during the summing-up, did not draw any omission in relation to this aspect to the judge's attention.
23. The last two grounds relate to a failure by the police. The sixth ground has now, in the light of further information that has come to counsel's attention, been withdrawn.
24. The fifth ground is that the police failure to obtain cell site data for a particular mobile phone, which featured in the case and involved others in the case but not the applicant, and which showed communication with the phone both before and after the murder left the jury with a partial and incomplete picture. This is also a new ground. We say no more than this. The judge during the course of his summing-up rightly directed the jury not to speculate about what other evidence there could have been, and that the jury must decide the case on the evidence before them. To complain of a failure to provide further evidence is in effect to speculate as to the outcome of what that further material might have yielded, and that is inappropriate. In any event, as the single judge noted, the case against this applicant was a powerful one.
25. We stand back and consider whether the matters singly or cumulatively cause us to take the view that the conviction is arguably unsafe. They do not. Therefore this renewed application for leave to appeal against conviction is refused.
26. We turn to the question of sentence. There is an application by the applicant. There are no grounds that have been settled by counsel and there were no grounds settled by previous counsel, and the applicant himself has submitted no grounds. We can deal with that renewed application by referring to the observations of the single judge when refusing leave to appeal against sentence, when he said this:

"This murder having been committed on 11th December 2002 attracted the transitional provisions of the new sentencing regime.

In my judgment the Judge was fully entitled to find that though there was no initial intention to kill, merely to wound seriously, within a short space of time, given the number and nature of the injuries, the intention to kill was present. This was a professional attack organised by members of the underworld which you undertook for monetary gain. There was at least one and probably two knives and there was [a] second man there. The Judge was right to say there were a number of factors aggravating the crime and none mitigating it. I am unable to say that, even applying, as he had to, the 2002 practice direction, the sentence was in any way excessive."

27. We agree, and therefore this renewed application for leave to appeal against sentence is refused.
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