Neutral Citation Number: [2014] EWCA Crim 945
Case No: 201303293/C5 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Tuesday, 8th April 2014
 
B e f o r e: 
LORD JUSTICE ELIAS  
MR JUSTICE JEREMY BAKER 

RECORDER OF REDBRIDGE  
(Sitting as a Judge of the CACD)

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	R E G I N A		
	v		
	JASON ANTONIO MILITY		
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Mr T Siddle appeared on behalf of the Appellant 
Mr I Way appeared on behalf of the Crown  
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J U D G M E N T

1.	LORD JUSTICE ELIAS:  The appellant was convicted by a majority of 11 to 1 to three counts of robbery, one of attempted robbery and three of possessing an offensive weapon.  He was sentenced by Mr Recorder Syfret QC in the Crown Court at Nottingham on 22nd March 2012, to 6 years for each of the robberies, 4 years for the attempted robbery and 2 years for each of the possession counts, all to run concurrently with each other, giving a total sentence of 6 years.  He was acquitted on two counts of robbery and one of possessing an offensive weapon, on the judge's direction, following a half‑time ruling there was no case to answer with respect to those counts.
2.	There was a co‑accused, his partner, Paula Baptiste.  She gave the police a statement providing the appellant with an alibi for each offence to the indictment.  It was alleged that she had solicited her mother to provide a false alibi in respect of one of the robberies.  She was accused of perverting the course of justice but she too was acquitted on the judge's direction, again following a half‑time ruling that there was no case to answer.  This is now an appeal against conviction by leave of the single judge.
3.	For the purposes of understanding this appeal it is not necessary to set out the facts in any detail.  On three occasions during October and November 2011 three women were the victims of knife‑point street robberies.  In each case the victim identified the appellant at an identification parade with a greater or lesser degree of certainty.  In the case of one of the offences, committed against B on 15th October 2011, there were two other witnesses who also identified the appellant in identification parades, again with different degrees of certainty.  
4.	The attempted robbery occurred on 3rd November 2011 when the appellant sought to grab a mobile phone but was unsuccessful.  No knife was used on that occasion.  Again the victim identified the appellant without being certain that it was him.
5.	Each of the victims (and in the case of Miss B the two other witnesses) gave evidence in which they described their attacker and spoke about the confidence they had in their identification.  Of course in each case the identification was necessarily very limited in time and in some cases it was made in the dark.
6.	The jury were directed that they should place no weight at all on the evidence of another alleged victim, whose case had been dismissed at half time.  As we have said, there was also a further victim whose case was dismissed at half time.  No direction was specifically given in relation to the jury that they should ignore her evidence although it is not suggested in the circumstances that was a material error.  Both those victims had failed to pick out the appellant in their identification parades. 
7.	There were originally a whole series of grounds in relation to this conviction.  Some, once a transcript became available, were plainly misconceived and had not been pursued; others have been developed in light of comments by the single judge granting leave.
8.	We can deal first with very much a secondary argument advanced by Mr Siddle on behalf of the appellant.  It was submitted that the judge erred in failing to direct the jury about the elements of these offences and in failing to tell the jury that they had to be sure that the offences were committed as alleged.  The critical paragraph in the summing‑up is as follows:  
"Everything is proved except the identity of the robber, and that will be for you to decide.  So you don't have to worry about the elements of the offence.  They are quite simple.  
Have the prosecution proved on each count that it was this defendant who committed the crime you are concerned with?"  
Counsel submitted that it is not for the judge to direct the jury that matters have been proved.  Whether or not these offences had occurred was something for the jury itself to determine, and in order to do that they needed to know the elements of the offence.  The judge had usurped their role and sought to reach conclusions on matters within their province.  Strictly, that is entirely correct. It would better have reflected the respective functions of judge and jury if the judge had summarised the elements of the offences, albeit briefly, and perhaps told the jury that they might think that there was no doubt these offences  had occurred, particularly since no one at all is asserting to the contrary. But in truth nothing turns on that error.  Nobody was disputing these offences had occurred.  The essential question, as the judge rightly observed, was one of identification: was it this defendant?  The judge had in fact got to the heart of the matter without formally leaving it to the jury to decide whether these offences had been committed.  Strictly he ought not to have approached the summing‑up in that way.  But it would have made no difference whatsoever to the outcome had he approached matters as he ought.  His failure to do so does not begin to render these verdicts unsafe.
9.	The second and principal ground of appeal is directed against the conduct of counsel at trial. He was not Mr Siddle, who conducted the appeal.  It is said that he ought to have pursued an application for a fresh trial once it had been determined that there was no case to answer in respect of two of victims or in respect to the case against Paula Baptiste.  Counsel had in fact made an application to that effect but he withdrew it after discussion which the judge.  It is submitted that there was real prejudicial effect in allowing the case to continue and not seeking a fresh trial.  First, there was prejudice in allowing the evidence of the two additional victims to be adduced before the jury.  This suggested that there may have been even more offences committed by this appellant.  This was particularly so with respect to one of the victims because the appellant had advanced an alibi that he was with his probation officer at the material time, as part of the weekly visits, thereby disclosing that he must have committed criminal offences before.  That evidence, it is said, would not have been before the jury had there been a retrial because of course there would be no case advanced with respect to that particular victim.
10.	Also the evidence of Paula Baptiste's mother had been heard by the jury and it was said that this too was prejudicial.  It consisted of a note given by her daughter, it was alleged, on which the dates of the robberies had been identified and it was intended, it was alleged, that the mother should say that the daughter and the appellant had been with her on these occasions.
11.	Again, since this was relevant only to Paula's case, it is submitted that that evidence would not have been available at the fresh trial.  The mother would not have given evidence and it is submitted that the note could not have been adduced in evidence either.  Finally, it is said that there was perfectly understandable reluctance to call Paula at this trial given that she was a co‑accused.  Tactically it would have been dangerous to do that.  But that would not have been so at a re‑trial.  Her evidence could then have been helpful to the defendant in establishing his innocence and in relying on alibi.
12.	Privilege was waived and the original counsel has provided an explanation why, having initially made the application for the jury to be discharged, he decided not to pursue it.  He said that Paula would have been a disastrous witness and there was some benefit in the jury believing, as indeed they were told by defence counsel in his closing speech, that she did not want to give evidence because she had been charged and was a co‑accused.  The jury had in fact heard her interview which counsel said helped the appellant.  Counsel recognised that he could have called Paula as a witness but did not think it was wise.  Furthermore, the fact that there were two further robberies at which the victims had failed to pick out the appellant was potentially a powerful point in the appellant's favour.  It highlighted the problem of relying on identification evidence and reinforced the submission that these other victims and other witnesses who had purported to identify him, none with absolute certainty, may well have been making a mistake.
13.	In our judgment, these are good and cogent reasons for not pursuing the application.  It is by no means self evident, as counsel submits, that this application should have been made or that counsel failed in his duty to his client by not doing so.  We also reject a submission that he did not discuss the position fully with his client before adopting this course.  Counsel, who made his response after privilege was raised, as we have indicated, said there had been those discussions, and indeed the transcript of the discussion of the original application indicates that he was given time specifically to discuss the matter with his client.
14.	Where incompetence of counsel is alleged, the onus is on the defendant to show that the verdict is unsafe ‑ see R v Day [2003] EWCA Crim 1060, where in giving the judgment of the court Buxton LJ said this: 
"...  in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe."
15.	In our judgment, that burden has not been discharged here. In addition, once counsel had taken the view that it would be a mistake to pursue the alibi defence, because that hinged critically on Miss Baptiste, whom he believed would have been a disastrous witness, then we see very powerful reasons why he would want to have gone on with the trial in the way that he did.  Of course it may be that other counsel would have called differently but that is a far cry from saying that there is the kind of error or incompetence which begins to render the verdicts in this case unsafe.
16.	Finally, counsel pursued another ground which was of some concern to the single judge granting permission.  Specifically the judge in granting leave had considered that arguably there should been some reference in the summing‑up to the significance of the half‑time decisions. The judge identified two matters in particular.  First, that it might have been appropriate to direct the jury that they should ignore entirely any of the evidence relating to Paula Baptiste and specifically should be told not rely on it to the prejudice of the appellant. Secondly, the judge ought to have directed the jury that they ought not to speculate as to reason why the defendant was on probation.  The judge had in fact, during the course of the original application, indicated that he would give directions on both these matters.  
17.	However, in connection with the probation point there was a further discussion with counsel before the summing‑up and the appellant's counsel, at that stage, indicated that he thought it better not to have any specific direction on the point.  In counsel's closing speech he reminded the jury that the defendant had said in his evidence, just a little earlier that day, that "he was no angel" or words to that effect but that he had not committed these robberies. Counsel felt that nothing more needed to be said. 
18.	We accept of course that the fact that counsel did not want the direction is not decisive of this ground of appeal.  We would have to interfere if we considered that the failure to give this direction rendered these verdicts unsafe.  In our view it did not do so.  We think it highly unlikely in fact that a jury would assume that because somebody was on probation he would have committed these very serious offences involving knife robberies.  Moreover, the jury were told, repeatedly in fact throughout this whole summing‑up, that the key issue on which they had to focus was the identification issue.  We have no reason to suppose they did not do that.
19.	As to the question of whether the judge ought to have referred to the half‑time decision to drop the case against Paula Baptiste, in our view, the judge did just that.  As we have indicated, the thrust of the case at the trial was not that the appellant had an alibi for each and every occasion when these robberies had occurred but rather that he could not remember necessarily what he was doing on each and every occasion. The judge summed up to the jury by saying: "There is no alibi in this case because the defence case is essentially very simple." That simple case was summarised by the judge as follows:
"His position is this: I did not commit any of the robberies concerned. It's pure misfortune that I am picked out on the identification parade by these people.  It wasn't me.  I can't say particularly where I was, but it wasn't me because I haven't robbed them."  
The judge then went on to say: 
"... in fairness, even if he was an innocent man, what more could he say in the circumstances than it wasn't me, I can't be particular as to time and place going back over a number of weeks?" 
The judge then later said in terms to the jury the following: 
"Now, members of the jury, the next part of the case was taken up with the evidence concerning Mrs Gardner  [that was Miss Baptiste's mother] and Miss Baptiste.  It didn't go anywhere very fast.  You will remember, there was a considerable amount of confusion in the course of the evidence, but in any event you don't have to think about it because that charge had been withdrawn from you."  
Mr Siddle submitted that this fell far short of the undertaking that the judge had effectively given, that he would tell the jury that they should pay no attention to that evidence.  With respect, we do not accept that.  It seems to us that it was a very clear direction they should pay no attention to that evidence and there is no reason to suppose they did not comply with that direction.  
20.	We think overall that the judge dealt fairly with the question of alibi, and he dealt fairly with the evidence of Mrs Gardner and Miss Baptiste.  It may be that it would have been better had he given a specific direction in relation to the probation officer point but it is always difficult issue as to whether it is better to remind the jury of that evidence or whether it is better simply to let it lie.
21.	It was not an error such as to cast doubt on the safety of the conviction in our view.  Accordingly we dismiss the appeal.