Mullings & Anor, R v

LORD JUSTICE JUDGE: On 13th August 2002, in the Central Criminal Court before Her Honour Judge Goddard and a jury, these appellants, together with a third man, Smallon, were convicted of murder. They were sentenced to imprisonment for life. Mullings and Morgan appeal against conviction with leave of the full court. Smallon's renewed application for leave to appeal against his conviction was rejected by the full court in July this year.

There is no doubt that Shakir Ali, a young married man, was the subject of a ferocious, murderous attack during the evening of Wednesday 4th July 2001. At 10.40 pm at Whipps Cross Hospital he was pronounced dead. At post mortem on the following day 45 separate injuries were identified, caused by 20 separate impacts to his body. The cause of death was a fatal stab wound to the heart. Some of the impacts on the body may have represented the imprints of a shoe. He also suffered a series of linear fractures causing brain injury, consistent with a blow or blows of considerable force which, even without the stab wound to the heart, might itself have been fatal.

The Crown's case was that those responsible for the murderous attack on him were the three defendants at trial.

The deceased was born in December 1978. He had a number of previous convictions. There was evidence which suggested that he had told someone, who had told the police, that he had been involved in an argument over drugs and money and that someone had held a gun to his head in Walthamstow Central Station.

At trial the defence explored whether others may have had a grudge against the deceased which led them to kill him. We are asked to consider evidence which is said to be fresh evidence which would support that contention. We have, of course, read it. It relates to events in the early hours of the day of the killing. The statement is vague. The defendant himself received or knew of the existence of this particular witness. Even if we were to admit this evidence under section 23 of the Criminal Appeal Act, it would, in our judgment, be entirely peripheral and it would have taken the defence case at trial no further. It was in any event well established that there was ample evidence from which the jury could conclude that the deceased may indeed have had a number of enemies. In the result, that evidence simply takes this case no further.

The real issue in the appeals is whether the judge wrongly rejected submissions by Mullings and Morgan that there was no case for either of them to answer. We shall therefore focus our attention on the evidence at the close of the prosecution case, trying to deal with it in narrative order.

For the sake of completeness only, we immediately note that after the judge had rejected the submissions, Smallon gave evidence that he was at home at the time of the murder and had indeed spent the whole of the afternoon of 4th July there. His car too, and that plays a part in this case, had been there throughout the entire day and evening. Mullings relied on an alibi to the effect that he was at his home with his mother and sister on 4th and 5th July. He did not know Smallon at all; indeed, before his arrest he had never heard of him. Morgan was his cousin, but he had last seen Morgan on 8th June and he could not remember speaking to him on 4th and 5th July. In interview Morgan had not answered questions and at trial he elected not to give evidence. When charged he had asserted his innocence, as the judge reminded the jury, but beyond that nothing was heard from him.

The defence of each defendant, therefore, was that he was not present at the scene and had not participated in the attack on the deceased.

Before the jury could convict any of the defendants, they had to be sure that he personally had been present and participated in the beating which resulted in the death of the deceased.

The judge's summing-up has not been criticised. It was, if we may say so, admirably fair and balanced and, equally, it was comprehensive. There is no doubt that the jury would have been entirely clear about the issues which they had to resolve. We must therefore return to her decision that the cases against these two appellants should be left to the jury.

Apart from the background of individuals who had grudges against the deceased, the starting point is trouble at about 4.20 pm in the afternoon of 4th July in Selborne Road, Walthamstow, near to Walthamstow Central Station. This incident involved the deceased and a man called Barker. They were driving a red Audi. The Crown alleged that at the relevant time Smallon was driving a blue Fiat Bravo, P536 DCW. Barker gave evidence that while he and the deceased found themselves stuck in traffic, he saw a man in a blue Fiat Bravo making hand gestures and shouting and swearing. He asked the deceased who it was. The deceased said "That's Lewis". When the blue Fiat came to a halt by traffic lights, the deceased got out and went over to the Fiat. Punches were thrown. When Mr Barker went over to the scene, the man he understood to be Lewis said "I'm going to come back for you. I'm going to kill you". In his witness statement Barker had said that the man called Lewis had said "Haven't the big men spoken to you? Don't fuck with me. I'm going to take you out... I'm going to finish you. I'm coming back, I'm coming back, watch". When this was put to him, Barker agreed that this indeed is what Lewis had said.

A number of descriptions were given of this unpleasant incident which we need not narrate in great detail. One witness described the car used by the deceased and Barker as a dark coloured Ford Sierra. An Asian man, according to this witness, who was the deceased, left the driver's door and walked over to a light sky blue metallic Fiat Bravo, opening the door of the Bravo and punching the person inside. The passenger Barker was described as a black man some 6 foot tall, or even taller, who went over the to the Bravo and opened the passenger door, leaning into it. There was evidence that the driver of the Bravo was attacked through the sunroof of the car.

As we have indicated, the incident was seen by a number of witnesses who gave different descriptions of the deceased and Barker. For example, the deceased himself was variously described as an Asian man, a man of light skin colour who may have been Turkish in origin, white skinned with short, light coloured hair, and indeed white. The independent witnesses suggested that so far as this incident was concerned the driver of the blue Fiat Bravo had been the victim of an attack.

The incident came to an end and the blue Fiat drove away. As it did so a witness working in a car wash in Selborne Road saw what he described as a bluey/green Fiat Bravo with two men in it, shouting and threatening words like "We're coming back for you, to kill you". Both he and Barker said that the car that they had seen drove off towards Hoe Street. He also saw the deceased and someone he described as a Jamaican man, who was plainly Barker, get into the car and drive away. That should have been the end of it. But, contrary to what the deceased appeared to believe at the time, these were not idle threats, they were the precursor to the fatal attack on him some five or so hours later.

A few minutes after these cars had gone, the witness working in the car wash saw the Fiat again. Its return was noted on CCTV film and timed at 4.30. He saw someone who he described as light skinned in the Fiat (he explained that he meant that was half caste), together with a man in the car whose skin was dark.

By now the deceased's brother, Musawar Ali, was present. He described seeing a sky blue Fiat, which he thought was a Fiat Tipo, with two people in it, one fair skinned of mixed race with short hair. For obvious reasons it was an important part of the Crown's case that the blue Fiat car involved in this incident belonged to Smallon and that at the relevant time Smallon was in it.

During a video identification procedure some three months later, Barker picked out Smallon as the driver of the Fiat, noting, however, that he was not 100 per cent sure and observing that the hair of the driver was a bit shorter than appeared on the film.

There was also argument at trial to the effect that what the deceased had said to Barker at the time in relation to the use of the first name "Lewis" should not have been admitted. It was submitted on Smallon's behalf that this evidence simply was inadmissible.

Again, we need not examine this in any detail. After heaing argument, the evidence was admitted. We were not invited to examine this ruling. We shall simply observe that the words spoken by the deceased served properly to identify an individual who had promised to execute very serious violence on the deceased, and that within a few hours he was subjected to it.

The immediate movements of the deceased during the rest of that afternoon and early evening do not take this case any further. However, at about 9.45 that night three men arrived at his flat together by car and, after attacking him, left the scene, doing so by returning to the car in which they had arrived and driving away in it together. It was obvious that the attack on the deceased had been planned.

The Crown's case was that the bulk of the arrangements were made by and through the use of telephone calls made to and received from telephones in the possession of the three defendants. This evidence, therefore, formed an essential part of the Crown's case.

For the defendants it was argued, and we have been reminded in the written submissions and oral argument today, that the Crown had been unable to show that the calls attributed to any individual telephone had in fact been handled by the cell sites claimed by the Crown. The expert witness called by the Crown acknowledged that the user of a telephone might be up to 2 kilometres away from the best server cell site available at the time when any call was made, explaining that in densely populated areas there was likely to be a heavier mobile telephone usage, which in its turn would create an increase in the likelihood that the telephone signal might not be handled by the best server cell site, but perhaps by the next best, or even the next best after that, all dependent on the volume of traffic. Therefore it was accepted that it could not be categorically asserted that a mobile telephone was actually used in the area of the best server cell site. It was however also suggested by the Crown's expert that the time with which this case is concerned, Wednesday afternoon and evening, would not be particularly busy within the context of the evidence which we have just described. In any event, there could be in the end no doubt that the telephones with which we are concerned moved over distances that were well in excess of a kilometre or two and that the movements of these telephones are at least as important as the destination of the telephone calls.

A number of other matters were emphasised to us. No evidence was given of the detail of any conversation and none about the duration of any of the individual calls. It was also suggested that there was no direct evidence to establish beyond question that either Mullings or Morgan were in possession of the telephones attributed to them on the day in question. We shall simply observe that if there was a case to answer, these were classic jury questions.

Smallon was living at 29 Granville Road, a few minutes away from Walthamstow Central Station. Indeed, he seems to have spent the early part of the evening at that address making telephone calls. On the basis of evidence from a witness, the Crown alleged that the telephone number 07971727939 was being used by him.

In the immediate aftermath of the unpleasant incident in Selborne Road, Smallon's telephone called the telephone owned by Morgan, 07815166464, from the cell site near to Smallon's home. At that time Morgan was in the Edgeware/Elstree area. That evening telephone calls were made from that telephone to someone Morgan knew well, which tends to confirm that it was in his possession that afternoon and evening. We note now that the telephone attributed to Mullings was found on him when he was first arrested some two months or so later, and that it was indeed his telephone.

Morgan was called again at 4.51, connecting with voicemail, and again at 4.56. By then his telephone had moved to Mill Hill. Then at 6.10 Morgan's telephone called Smallon's from Winchmore Hill. It called again at 7.22, and again at 9.02. At the time of that telephone call Morgan was still in the Winchmore Hill area, well to the north of Walthamstow. Smallon remained in Granville Road throughout. 9.02 was the last activity on Smallon's telephone before the attack on the deceased. There was no telephone link between Smallon and Mullings.

In the meantime, however, Mullings had sent a text to Morgan at 6.24 and, perhaps more important, at 7.40 Morgan telephoned Mullings' voicemail. Almost immediately afterwards, at 7.42, Mullings rang Morgan's voicemail. Mullings' telephone was in the West Ham area, to the south of Walthamstow. Morgan's telephone immediately voicemailed Mullings back at 7.43, and at 7.44 there was a call from him to Mullings. At 8.20 Mullings telephoned Morgan. Immediately after the call at 9.02 between Morgan's telephone and Smallon's telephone, at 9.03 Morgan's telephone called Mullings' telephone. Thereafter Mullings' telephone moved in a southerly direction some 7.5 kilometres and Mulling's telephone moved in an northerly direction, something like 4.5 kilometres. Both arrived at the centre of Walthamstow.

There was a call at 9.28 from Mullings' telephone, which confirmed that he was in the centre of Walthamstow, and so by now Mullings' phone was in the area of Granville Road and Morgan's telephone was there too. In effect, they had now reached the same area as the telephone which Smallon had been using that afternoon and evening.

The journeys and the times are of particular importance in the context of an attack by three men which began close by in Walthamstow at about 9.45. The first 999 call seeking aid was made at 9.50.

The story of the death of the deceased does not need great elaboration. It was a dreadful incident. The deceased was employed on the night shift at Sainsburys in Chingford. He asked his mother to drive him to work, and his brother, Musawar, who had been chatting to the car wash operator earlier that afternoon, thought it might be a good idea to accompany his brother and mother because of the earlier incident. His brother went to the deceased's flat, leaving their mother in the car. The two brothers left the flat together. A voice was heard from the second floor balcony, saying "Shaks", that was a reference to the deceased, "wait there, I want to have a word with you". A black man approached, apparently angry, and ordered the deceased to go with him. As they walked along the pavement together the black man said to the deceased "You know my cousin Lewis, don't you Shaks." The deceased's brother then became aware of two more men, described as black and of mixed race respectively, coming from a Fiat car. There was in fact a very powerful body of evidence at trial, which was unchallenged, that the three men who participated in this attack were black. It was the same Fiat car that the deceased's brother had seen earlier that day while at the car wash. The driver, he said, was the same man that he had seen earlier, referred to as Lewis. That man, he said, was armed with a knife. He described the man as the passenger with the baseball bat. He heard them say, "You shouldn't have fucked with us, Shaks", and the driver said, "We're going to fuck you up, Shaks". The first man who had approached his brother produced a knife. The deceased said there was no need for that, pointing out that his mother was present, and indeed the unfortunate deceased's mother ran towards the scene leaving the car in which she had been waiting for her two sons, no doubt in a courageous but vain attempt to interfere and protect one or other of her boys.

The first man stabbed the deceased in the chest. The Crown alleged that this was Morgan. When she intervened Mrs Ali's hand was slashed with a knife. She was kicked in the stomach and she was threatened.

Smallon struck the victim, so did the third man, the passenger alleged by the Crown to be Mullings, who struck him more than once with the baseball bat. The deceased's mother heard all three men shouting "I'll kill you". They kicked him about his head and body. There was some suggestion of the presence of a possible second knife, but either way this can have no bearing on the identification or guilt of the assailants who then escaped in the car. The deceased's mother wrote down a partial registration number of this car as P536 D or O. Another witness wrote down P538 B, with a cross through it, CDW.

We shall return later in this judgment to the use of telephones, which resumed shortly after the attack, but which no longer included direct calls between the telephones of the three defendants.

For the moment we must consider identifying evidence, first examining the circumstances in which Musawar Ali identified Smallon as the man he had seen in Selborne Road at about 4.30 pm and as the light skinned person referred to as Lewis at the scene of the killing. Again it does not matter for the purposes of the present appeal, but there were specific problems with the identification of Smallon which were made the subject of sensible admissions between both sides. These admissions were put before the jury at trial.

Eventually Musawar Ali viewed a video compilation on 16th October and identified Smallon, who was seated at position number 7. As it happened, that video compilation included two volunteers who, for a particular reason, should not have been included. There was, therefore, a breach of the relevant code of practice and objection was taken to the admissibility of the results of the process on 16th October.

These issues were ventilated pre-trial before Judge Roberts. He carefully examined the facts and decided as a matter of discretion that, notwithstanding the breaches of the code of practice, the evidence of this identification should be admitted before the jury. We mention that by way of completeness. The decision formed the basis of one of Smallon's intended grounds of appeal, but for present purposes this matter goes no further.

At an identification parade held at the beginning of October, that is virtually three months after the killing, Musawar Ali identified Mullings as the assailant who had struck the deceased with a baseball bat and confirmed that he had been present at the scene. We note that neither his mother nor another witness at the scene made an identification.

There were a number of features of this identification and the identification of Morgan, which took place a month later, which required that they should be approached with considerable care. To begin with, the opportunity for making a positive correct identification was limited. It does not take much imagination to realise that this was a shocking incident, quickly over. It was also the fact that Musawar Ali had not previously seen, and therefore could not in any sense at all be said to "recognise", any of his brother's assailants. There was also evidence to suggest that he was a drug addict addicted to heroin and that he had used this drug both on 4th July and indeed when he participated in the parades relating to these two appellants. He may therefore have been under the influence of heroin at each of those critical times. He was also someone with criminal convictions, which would, on any view, have damaged his credibility. These reservations generally apply to both the identifications with which we are concerned.

Our attention was also drawn to the fact that in relation to Mullings the identification was not made until 28 minutes had passed, which, on any view, and in the experience of this court, is a very long time. It was pointed out to us that by this time Mullings had grown a beard and that all the volunteers had to be provided with beards. Nevertheless, it did indeed take him a long time to produce the identification.

It was also noted that when he first answered questions in the immediate aftermath of the attack, Musawar Ali had described the man with the baseball bat as a 21 year old white man, adding that he had not looked at the man with the baseball bat at all and that he "could not say what the man looked like, not even to say the colour of his skin", commenting that he really only "focused on the other two".

In his evidence at trial he asserted that Mullings was the man with the baseball bat, at least he asserted that when he gave his evidence-in-chief and confirmed it at the start of his cross-examination, but by the end of his cross-examination it appeared that he might be conceding that he was unsure.

As an identification standing on its own, the Crown conceded, and rightly, that the identification could not found a satisfactory conviction.

Our attention has also been drawn to the fact that another witness who had not attended any identification parade said that he knew Mullings by seeing him in the street but not personally, and when he was called to give evidence at trial he saw Mullings in the dock and said that he was absolutely sure that Mullings was not the man with the baseball bat. This witness was unable to identify the deceased's mother, who was, we understand, well known to him.

On 3rd November Morgan was also identified by Musawar Ali, but the identification was far from positive. He explained that: "My memory has faded. I cannot make a positive identification. He fits the description of the person who stabbed my brother in the chest but 70 per cent of me is saying that it might be him, I'm not 100 per cent sure".

Again, for obvious reasons, standing on its own this identification would not have been sufficient to justify a conviction. The identification process relating to Morgan extended to a number of other witnesses, none of whom were able to make any positive identifications. The deceased's mother, who was plainly unable to be sure about an identification, referred to the man with the knife as "a little lighter in colour than the other man", and on occasions in the immediate aftermath of this ghastly business had referred to one of the assailants as being white. That was not a description that could have extended to Morgan. So, again, the Crown accepted that this identification simply would not have been sufficient for the purpose of a conviction if it stood alone.

We must note before leaving this part of the narrative that it was not suggested at trial that the identification evidence, once fully explored, should have been withdrawn from the jury. We agree if it had stood in isolation there would have been no case for either appellant to answer. It did not stand alone and, for all the possible criticisms reasonably made of the deceased's brother, it did happen to be the case that he was closest to the scene, and that he did indicate some sense of familiarity with each of these two appellants rather than the other volunteers who were on the parade. We are therefore not surprised that no application was made at trial for this evidence to be removed from the jury's consideration by an appropriate direction.

We can leave that awful incident and the identification evidence.

Seven minutes after the 999 call, at 9.57, Morgan's telephone was back in use. By now it had moved north. The evidence was consistent with its use just south of the North Circular Road where Walthamstow Avenue becomes Angel Road. The destination of the call was the telephone of Victoria Chapman at 434 Bowes Road.

We just pause to comment that an observation of the maps available to us shows that if the destination of Morgan's telephone that evening was intended to be Bowes Road, it had taken an extraordinary journey, going all the way south to the centre of Walthamstow before then setting off to Bowes Road.

Twenty minutes after that call the telephone was in use again from the cell site evidence consistent with use at the Bowes Road address. In the meantime, at 10.09 Smallon's telephone was using a cell site which would have been expected to handle a call made from the top of the stairs at Bowes Road. In short, therefore, there was evidence that both the Morgan telephone and the Smallon telephone had moved to the same area, north of the scene of the killing, within a very short period of the attack on the deceased.

At 11.14 and 11.18 both the Morgan telephone and the Smallon telephone used a cell site consistent with use at ground level at Bowes Road. Then at 11.50 and 11.55 Smallon's telephone and Morgan's telephone again used the same site, this time to call the same number, at any rate the number of which the last three digits were 008. At 11.39 and again at 00.09 Mullings' telephone was also traced to Bowes Road. Just before midnight, at 11.57, the Smallon telephone received a call from what was described as the Jade Smallon telephone. She is Smallon's sister. The Jade Smallon telephone then telephoned Morgan's telephone at 00.09.

It follows that the three telephones attributed to each defendant had left the scene where the killing took place very shortly after it happened. They had travelled in the same direction after the killing, but after the killing they ceased to contact each other in the same way in which they had done before it, on the face of the evidence, because they were in sufficiently close proximity to each other not to do so.

Smallon was arrested on 15th July at his home address. The registration documents and keys for a Fiat Bravo P536 DCW were found in his bedroom. The car was parked nearby. Police officers ran variations on the registration number noted at the scene. P536 DCW was registered to Smallon. Perhaps more significant, the only similar registration for a Fiat was a Punto Y538 DCW, registered to an owner who lived in Merseyside. In his interview that day Smallon made no incident.

Mullings was arrested on 18th September in Leytonstone High Road. In his first interview he declined to answer any questions. He was interviewed after the identification parade. In that interview he denied any involvement in the offence, indicating that he knew Morgan but that he had not seen him since 8th June. He said he was not in the area of the murder on 4th July, but he could not say precisely where he was. When the interview began and he was first questioned about his telephone, Mullings said nothing to indicate the possibility that he had lent it to anyone else. He repeatedly asserted that he did not know Bowes Road. In fact, quite apart from the telephone evidence, surveillance showed that he had arrived at the flat at Bowes Road on 24th October 2001 when Morgan was at the flat and they later emerged from that address within a very short time of each other. When he was directly asked to explain how his mobile came to be in the area of London N11, he then said that he did sometimes lend his telephone, but he was unable to say whether he had done so on the night of the murder. He identified three people to whom he had lent his telephone, sometimes he lent it to his brother for his brother to hold for him in case a girlfriend telephoned. He suggested that his own girlfriend was another possibility. He said that he had lent his telephone to Curtis Charles who, on the evidence, was using his own telephone on the day of the killing. Mullings said that he had been broke that July and that if he did not have enough money he would not go to Walthamstow. He asserted that he had not been there until shortly before the police had started interviewing him. That meant that his apparent presence in the Walthamstow area at 9.28 on 4th July was unexplained.

Taken as a whole, this interview was at least consistent with an attempt to distance himself not only from his phone, but also from the important area of Bowes Road.

After that somewhat lengthy narrative of the relevant evidence as it stood at the close of the Crown's case, Judge Goddard considered the submission that there was no case to answer and concluded that there was. The way in which she expressed herself is entirely clear. She did not believe that the identification evidence taken on its own, or the telephone evidence taken in isolation, would have been sufficient to found a case.

There was argument before us whether she was correct to regard the evidence of Smallon's involvement in the crime as relevant to the case of the other co-defendants. It is plain that she had to consider the case against each defendant separately, but, in our judgment, if there was evidence admissible in the cases of Morgan and Mullings respectively which would have entitled the jury to convict Smallon, that evidence was directly relevant to the individual cases of these two defendants.

We must just re-cap. Smallon had been attacked by the deceased. His response to it was to threaten violent revenge. There was ample evidence which linked his car with the scene of the killing. His car was in effect identified as the car in which the murderous gang of three men led by him came to the deceased's home, and after a brutal attack left the scene, all three still together using the same car. There was further evidence identifying him personally at the scene. These three men, and in particular the two men who were with Smallon, did not arrive at the scene using his car by accident - arrangements had to be made for them to join him when they did.

In our judgment, this evidence produced a very strong case, admissible against both appellants, that Smallon personally took part in the attack on the deceased and drove the others to the scene with him. It provided an important element of the context in which the other evidence against the two appellants had to be considered. Apart from a short period covered by the attack itself, there was considerable evidence that Smallon and Morgan were in communication by telephone before the attack; similarly, that Morgan and Mullings were in communication on a regular basis. The record of telephone calls further demonstrated that both Morgan and Mullings left addresses some distance away from the scene and, although starting from separate points, joined together very close to Smallon's address and very close to the place where the killing took place. Within a very short time of the killing all three men left the area of Smallon's home and found themselves at the same place, certainly in the same area, to the north of the scene of the killing. In short, all three men travelled in the same direction away from the scene from quite different starting points for journeys that evening which had started by bringing them into Walthamstow.

We accept that the jury cannot have known precisely what any of these three defendants actually said to each other when they were on the telephone, but the fact of the calls and the direction of the journeys taken by each phone, both before and after the killing, were remarkable if Smallon committed this crime with two different men. At any rate, that was something which the jury was entitled to consider. It was also not without significance that after the killing the phone calls which had taken place between them appear suddenly to have stopped.

In the end result, that evidence, in the context we have described, would have provided a case to answer. The identification evidence did not provide such a case, but the accuracy of the identifications was lent a good deal of support by the evidence of the telephone calls and the evidence of the movement of these appellants during the evening. We would have regarded the evidence of the Mullings' interview as potential reinforcement for the case against him, but we need not expand further on this point.

In our judgment, there plainly was a case for these two men to answer. The judge would have usurped the function of the jury if she had withdrawn the case from it. She did not do so. She was right. Accordingly, the main ground of appeal fails.

Apart from the fresh evidence relating to possible grudges held against the deceased, that is the single point in relation to the appeals. In relation to Morgan, we must add, in the various papers before us a number of different points were canvassed. These included the possibility of complaint against his legal representatives at trial, the possible existence of alibi evidence, the circumstances in which he decided not to give evidence, and possible further evidence in relation to what we shall describe as the Morgan telephone. These were not pressed before us; indeed, no argument was addressed to us and the request to consider whether to apply what is sometimes described as the "lurking doubt" principle was, in our judgment, misplaced. This was a case pre-eminently for the jury. The jury had to deal with the case against Morgan in the absence of any sort of evidence coming from him directly at trial or in the course of interviews before trial. We do not think that this is an appropriate case in which the lurking doubt principle can possibly be applied.

In those circumstances, these appeals will be dismissed.