Kelly, R. v

LORD JUSTICE LLOYD JONES: On 15th August 2012 a robbery took place in the street at Alscot Road, Bermondsey. The robbers had arrived at the scene in three cars, and at the end of the incident, having forced the driver of a Golf, Roni Byrne, out of her car at gun-point, had driven away in those vehicles and had also driven away the Volkswagen Golf.

On 20th February 2013 Raheem Simpson, Shane Lodge and Rushane Wheelan were convicted at Woolwich Crown Court before His Honour Judge Lees of robbery, kidnapping and possessing an imitation firearm. The jury was unable to reach a verdict in case of a co-accused, Albert Sampson, and a re-trial was directed. That re-trial took place at Woolwich Crown Court in June and July 2013, again before His Honour Judge Lees.

On 9th July 2013 the appellant Kelly was convicted of possessing a prohibited firearm contrary to section 5(1)(aba) of the Firearms Act 1968.

On the same day the applicant Sampson was convicted on a re-trial of the following offences. The verdicts were all unanimous save for the verdict on the count of robbery, which was by a majority of ten to one. Sampson was convicted of robbery, in respect of which a sentence of five years' detention in a young offender institution was imposed. He was convicted of possessing an imitation firearm contrary to section 5(1)(aba) of the Firearms Act 1968, in respect of which a sentence of 18 months' detention in a young offender institution concurrent was imposed. He was convicted of possession of five further counts of possession of prohibited firearms contrary to that subsection, in respect of which sentences totalling four years' detention in a young offender institution were imposed, those sentences concurrent to each other but consecutive to the other sentences imposed. He was also convicted of possessing a Class A drug with intent to supply, in respect of which he was sentenced to 12 months' detention in a young offender institution, that sentence also to be consecutive.

Kelly was convicted of possession of a prohibited firearm and the sentence imposed was one of three years' detention in a young offender institution.

Sampson was acquitted by the jury of a count of kidnapping.

The co-accused Ramesh Simpson was acquitted on all counts.

Kelly now appeals against conviction to this court by leave of the single judge. Sampson renews his application for an extension of time for leave to appeal against conviction and sentence and for a representation order after refusal by the single judge.

On 15th August 2012 Roni Byrne was in her Volkswagen Golf car in South London with a friend, Miss Aristide, and Miss Aristide's infant son, aged two. Roni Byrne parked the car on Alscot Road, and while they were there three cars approached and blocked the car in: a Volkswagen Golf hatchback with blacked-out windows, a dark-coloured Ford and a green Audi A3.

It was the prosecution case that the applicant, Sampson, was part of a group who then robbed Miss Byrne of the car and kidnapped Miss Aristide and her son. There was evidence which connected them to other vehicles, one of which, a Mazda owned by Sampson, was shown to contain a firearms arsenal close to the scene of the robbery. It was not the prosecution case that either the appellant Kelly or co-accused Ramesh Simpson had participated in the robbery.

The issue for the jury was whether the applicant Sampson had been involved in the incident of 15th August. In the case of Kelly the issue was whether he had been in possession of the firearm (identified by its exhibit number ANP/1) which had been found in the console of the Mazda, prior to 15th August 2012.

In May 2013 the Crown applied for a re-trial of Albert Sampson on the first indictment, which included robbery, kidnapping and possession of an imitation firearm, and on a second indictment alleging further firearms offences relating to other firearms found in the Mazda. The judge ordered joinder on the basis that the offences charged were founded on the same facts or were part of a series of offences of offences of the same or similar character within rule 14.2(3) of the Criminal Procedure Rules.

Roni Byrne gave evidence. She said that between four and seven males had got out of the various cars. They were all black, except one of mixed race, and none of them was older than 25. One of them reached through the window and removed her car keys. He was quite short and had a moustache. Another male, who was holding a gun, had jumped out of one of the cars. She described him as having cornrows and being 19 or 20 years of age. This man dragged her out of the car, placed her in a headlock and walked her to the bottom of Alscot Road. Suddenly some cars came skidding down and the man let go of her. He placed the gun into one of the cars while he himself got into another. She saw that Miss Aristide was being forced into a car, although she could not see which one it was. Her own car was then driven away. She had managed to get a glimpse of one of the men, who was driving the Audi. She could not say whether or not he was the one who had taken her car keys. Once they had gone she ran to a doctor's surgery and telephoned the police.

Miss Aristide gave evidence in relation to the incident, explaining how she and her son had been placed in one of the vehicles and driven some way for a short time before they were released.

On 17th August Roni Byrne attended an identification parade, at which she picked out three individuals; those were Simpson, Wheelan and Lodge. On 10th September 2012 she attended another parade and she picked out a fourth man; that was the applicant Sampson. She said that she was unable to say what role he played. She was asked how sure she was that he was one of the men and she replied:

Jessica Aristide picked out a number which related to a volunteer or did not pick anyone out.

On the evening of the incident the police were notified by a member of the public about a disturbance in Lambourne Grove. A silver Golf and a green Passat were parked near a Mazda. A number of black youths were inside and out of the Golf and Passat. These cars then drove off in convoy. Police stopped the Passat and arrested the three occupants: Lodge, Wheelan and Simpson.

The Mazda was taken into police possession. It was noted that there were cobwebs around the wheels. It was registered with the DVLA as owned by Albert Sampson since 22nd May 2012. It had been re-registered as being owned by Dennis Acheampong from 10th July 2012.

On 20th August 2012 an initial search was made of the Mazda. A self-loading pistol was found in the console armrest between the two front seats. There was no ammunition in the breech but it had two rounds in the magazine.

The Mazda was searched again on 10th September and two guns and ammunition were found in a bag underneath the front passenger seat. The bag was described as a boy's "McKenzie bag".

Roni Byrne was asked to describe the gun she had seen. She said that it was all black, square and about the size of the holder's hand or slightly bigger. She was shown photographs of the loaded hand gun found in the console of the Mazda and she said it was very similar to the gun which had been used in the robbery.

The registered keeper of the Mazda was the applicant Sampson. He was arrested on 8th September. He was driving a blue Audi A3 at the time. In interview he handed in a prepared statement in which he said that he had sold the Mazda to someone called Dennis Acheampong. He also gave an alibi for the time of the robbery.

On 25th September Roni Byrne's Golf was found abandoned in Bermondsey.

On 5th December 2012 Kelly was arrested and interviewed.

Police investigated the transfer of the Mazda to Dennis Acheampong and it was agreed that he was not and never had been the owner of the Mazda.

The firearms and related items were examined for the presence of DNA. On the muzzle of the pistol found in the central console of the Mazda (that is the firearm ANP/1), DNA originating from two people was found. A full profile matching that of Kelly was found to be the major contributor. The evidence was that the probability of obtaining a matching DNA profile if the DNA tested came from another person unrelated to Kelly was less than one in 1 billion. The minor contributor had left only a partial profile and was not suitable for comparison.

The evidence was eventually placed before the jury in the form of a statement of agreed facts, agreed under section 10 of the Criminal Justice Act 1988. The relevant extracts read as follows:

At the conclusion of the prosecution case there was a submission of no case to answer on behalf of both Kelly and Sampson and both of those submissions were rejected.

Kelly gave evidence in his own defence. He said that he had known Rushane Wheelan and Raheem Simpson, but not the others who had been charged in these indictments. He had not been with Rushane Wheelan on 15th August 2012, the day of the robbery. He had never seen a gun before. He had not seen the Mazda car. The McKenzie bag had nothing to do with him. His evidence was that, as he had told the police in interview, one of his gloves had gone missing and he had also left a body warmer at Wheelan's home some months before. His evidence was that someone must have used one of those items to wrap around the gun and that that was how his DNA came to be on the muzzle.

Sampson gave evidence. He said he had nothing to do with the robbery or the kidnap. The reason he had said in interview that he was with a friend celebrating a new born baby on 15th August was that he had thought that was where he was on that day. He did not keep a record of what he did. He admitted lying in interview about transferring the ownership of the Mazda to Dennis Acheampong. He said that he had told a lie to the DVLA because of a parking ticket and he thought the easiest thing was also to lie to the police. He had, in fact, he said sold the car to a man called "Flamer", who had paid him £800 in cash. He did not know Flamer. He did not know his real name and he did not know or where he lived. He had arranged to ring Flamer when he found the log book, which he could not lay his hands on. When he found it he had tried repeatedly to ring him but did not get any answer. He denied that the McKenzie bag was his or that it was the property of a friend of his. He said he knew Ramesh Simpson. He was asked about a woollen hat found in his Audi. He said he was pretty sure that Ramesh Simpson had been in the Audi, which he had bought in July, when he had given him lifts.

On 9th July 2013 Kelly and Sampson were convicted, as we have previously indicated.

We turn to Kelly's appeal against conviction. On this appeal it is said that the judge, in rejecting the submission of no case at the close of the prosecution case, misdirected himself in law. It is said that once there were two possible scenarios which could have resulted in the transfer of the appellant's DNA to the firearm, one pointing to possession (direct transfer) and the other not (secondary transfer), on the evidence before the court it was not possible for a properly directed jury to be sure of one rather than the other, and in those particular circumstances the judge should have withdrawn the case from the jury.

Counsel for Kelly, Mr Rutter, who has also appeared before us today and to whom we are particularly grateful for his helpful submissions, had submitted below that in relation to the sole count he faced, the evidence against him amounted solely to the finding of his DNA on the muzzle of the firearm. The Crown were inviting the inference that he had possession of the firearm at some point before 15th August on the basis of this single piece of evidence. When interviewed, the appellant had answered questions and had said that he had never seen or touched that particular firearm, or any other firearm. He also mentioned that he had lost a glove and that he had left a body warmer at the home of Shane Wheelan. Accordingly, it was said that there was a possibility of indirect transfer and it was said there would need to be some other evidence to support the prosecution case that the appellant had come into contact with and had possession of this gun other than by some form of indirect transfer.

The judge disagreed. In his view the appellant's DNA had been found on a significant part of the gun which had been stored in a particular place in the car. What the appellant had raised in his interview was unsworn evidence. It was a untested account which amounted to speculation. A jury could properly conclude on the evidence that he was guilty of being in possession of the gun following the presence of his DNA on the muzzle.

The trial continued. Kelly gave evidence, maintaining the account that he gave in his interview in relation to the glove and the body warmer. Mr Rutter repeated the submission of no case prior to closing speeches. It was once again rejected, the judge saying on this occasion:

Before us, Mr Rutter draws attention to a line of authority which was not drawn to the attention of the judge: in particular, Doheny and Adams [1997] 1 Cr App R 369; Lashley [2000] EWCA Crim 88; Grant [2008] EWCA Crim 1890; and Ogden [2013] EWCA Crim 1294.

In all of these cases the Crown relied on DNA found on an article of clothing at a crime scene to link the defendant to the commission of a crime. It was circumstantial evidence and in each case it was the only evidence against the defendant.

In Doheny, the expert evidence was that only 26 other men in the United Kingdom would have matching DNA. In Lashley, the evidence was that only seven other men in the United Kingdom would have matching DNA. It was in that context that the court said that some further evidence against the defendant in each case would be required. It went on to say that it need not be very much, for example it may be some link to the area, but such further evidence would be required before the case could be left to the jury. In the absence of any other evidence, it is clear that there would in those case have been insufficient evidence on which a jury could have convicted.

By the time of Grant and Ogden, analytical techniques had advance considerably, and here the evidence was that there was one in a billion chance of the DNA matching someone else. However, the difficulty in those cases was that the expert evidence could not age the DNA. It was not possible to show that the DNA was placed on the balaclava in Grant, or on the scarf in Ogden, at the time of the offence. Once again, it is possible to see immediately why, in the absence of any other evidence, there was insufficient evidence on which a jury could convict.

However, we consider that these decisions are distinguishable. The present case differs from all of these cases in that the presence of DNA is not relied on as evidence of the presence of the defendant at a particular place at a particular time; rather, the essence of the offence is possession of the article. So there is a much closer connection in this case between the DNA evidence and the commission of the offence. The presence of DNA on the article, on the muzzle of a gun in this case, is capable of being evidence of possession of the article at some point before 15th August as alleged in the indictment.

The question which arises here is a different one. It relates to the possibility of indirect transfer. The expert evidence before the court was that the presence of Kelly's DNA on the muzzle was consistent with direct transfer and that it was also consistent with indirect transfer. The jury had to consider whether in fact it was possible that indirect transfer had occurred.

At the close of the prosecution case, in the absence of any other evidence, it would have been open to the jury to reject that possibility. There was evidence capable of supporting the conclusion that Kelly had handled the firearm. At that stage his suggestion in interview in relation to leaving the body warmer at Wheelan's house and in relation to the lost glove was entirely exculpatory, and was untested. In any event, the jury might not accept the truth of what Kelly had said in interview.

The possibility of indirect transfer was a matter for the jury to address on the basis of all of the evidence in the case. If they concluded that it might be the case that it was indirectly transferred in some way, then they would of course have to acquit, but that was not a necessary conclusion and the matter was properly left to them, provided that they were correctly directed as to the burden and the standard of proof.

During the course of preparation for this hearing the members of the court considered the terms of the summing-up in the light of the submissions made on behalf of Kelly, notwithstanding the fact that no particular complaint was made of the terms of the summing-up in relation to this or any other point.

We raised with counsel this morning, before the start of argument in the case, our concern that there was no direction by the judge that if the members of the jury concluded that it might be the case that the DNA was transferred indirectly to the muzzle of the gun, then they must acquit. We were concerned that there was no such direction; indeed, at that stage we were concerned that there was no guidance provided to the jury specifically in relation to the significance of the DNA evidence.

We have now had the advantage of hearing submissions in relation to this further issue from Mr Rutter and from Mr Ingham, who appears on behalf of the Crown on this appeal. This was not a lengthy summing-up, and we note that at the outset the judge gave a correct direction in relation to both the burden and the standard of proof. The burden of proof in relation to the particular offence of which Kelly was convicted is crisply summarised at page 18 of the summing-up, where the judge says:

We also note that shortly before this, at page 16 letters B to C, the judge had specifically reminded the jury that Kelly had said that he had never handled these or any guns. What he actually said was:

The DNA evidence, which I have already referred to and set out in this judgment, was at a later stage of the summing-up set out to its full extent. Moreover, when the judge came to deal with the evidence of Kelly in relation to the glove and the body warmer, that evidence, it is accepted by Mr Rutter, was very fairly and accurately summarised by the judge at the conclusion of the summing-up.

Our initial concerns have been allayed in this case because it becomes clear that the issue of direct or indirect transfer of DNA was, in the case of Kelly, in effect the only issue. We consider that it would have been preferable had the application of the burden of proof to this issue been specifically spelt out, in particular we think it would have been helpful to the jury if they had been directed by the judge that if they thought Kelly's account was or may be true then they would have to acquit, but we do not consider that it was necessary for the judge to give that direction given the earlier directions to which we have already referred which, in our view, cover it sufficiently.

As a matter of common sense, it would have been obvious to the members of the jury from the directions which the judge did give that that was the issue on which they had to focus.

Accordingly, we consider that there is no basis here for concluding that the conviction of Kelly was in any way unsafe. His appeal will be dismissed.

We turn to the applications for leave to appeal both against conviction and against sentence on behalf of Sampson.

On behalf of Sampson it is said, first, that the judge erred in ruling on 22nd May 2013 that the two indictments, T20127649 and T20127065, could be joined. It is said that this had amounted to misjoinder.

The judge, in dealing with the application, summarised the prosecution case and highlighted the evidence linking the gun (ANP/1) to the robbery: first, the identification of all four defendants by Roni Byrne; secondly the identification of the gun as being consistent with the one used in the robbery; thirdly, the fact that some hours after the robbery a Passat from which Wheelan, Lodge and Simpson were arrested was parked three bays away from the Mazda when the stolen Golf arrived and parked on the other side of the Passat; fourthly, the location of the DNA of Ramesh Simpson on the inside of a glove and a bag containing two guns and ammunition in the Mazda and on a hat in the car from which Sampson was arrested; and, fifthly, the evidence of Sampson's ownership of the Mazda.

From this the jury could come to conclusions of fact and could draw inferences that the Mazda was being used to store guns, that Sampson knew that there were guns in the car, that they were in his control, that ANP/1 had been used in the robbery and that he had been taken part in the offence.

The judge considered that much, if not all, of the evidence appeared to be relevant and admissible in respect of the counts in the first and second indictments. In his judgment, therefore, the counts were founded on the same facts and formed or were part of a series of offences of the same or a similar character since they related to the possession and use of firearms.

It was argued that the admission of the evidence in respect of the firearms found in the car, which could not be said to have been used in the robbery and kidnap, would prejudice the jury when considering the identification evidence. The judge said he could not agree with that, having heard the evidence in the first trial. There was no sufficient reason to order severance and he would allow the Crown's application to join the two indictment in this case.

We agree with the single judge that the judge was clearly entitled to conclude that these counts at least formed or were part of a series of offences of the same or a similar character. As the judge below demonstrated in his analysis of the evidence, there was a sufficient nexus properly for them to be described as a series, and they all related to or involved the possession and use of firearms. Moreover, the judge below was well placed, as a result of the first trial, to judge whether or not there would be prejudice to the applicant as a result of joinder.

The second ground relied upon on behalf of Sampson is that it is said that the judge should have withdrawn counts 1, 2 and 3 from the jury following the submission at the close of the Crown's case since the quality of the identification evidence was poor and unsupported.

The judge, having referred to the authorities, disagreed. In his view the identification evidence was supported by the fact that the stolen car, the Passat and the Mazda were together in Lambourne Grove some time just before midnight on the same day and the fact that there was a gun found in the central console of the Mazda which was consistent in appearance with the gun used in the robbery. There was also, the judge noted, evidence that Sampson had attempted to distance himself from ownership of the Mazda and that he had given false information about an alibi. Those facts and those circumstances, taken together, were capable of amounting to supporting evidence for the identification. Although there were some problems with the identification by Roni Byrne and what she said about the certainty or not of her identification, this was a case where there was supporting evidence and accordingly there was a case to answer in respect of those counts.

We consider that the judge correctly identified the legal principles. The quality of the identification evidence in this case was not so poor and unsupported as to have required its withdrawal. This was an issue which required to be left to the jury, and that jury, properly directed, could convict on that evidence. There is no suggestion that the jury was not properly directed.

The judge recognised the difficulties with Miss Byrne's identification evidence, but he was entitled to conclude that there was sufficient support for the case to proceed and he identified that evidence in his ruling.

Accordingly, we consider that there are no arguable grounds of appeal against conviction in the case of Sampson and the application for permission to appeal against conviction will be refused.

Finally, we turn to the application for leave to appeal against sentence by Sampson. He renews his application for leave to appeal against sentence following refusal by the single judge.

On behalf of Sampson, it is submitted that the judge should have imposed concurrent sentences on the basis that the offences were continuing offences.

Sampson is now 20. He had a previous conviction for burglary in 2011 for which he received a rehabilitation order.

Sampson was the youngest of the defendants, although not by very much. In sentencing Sampson, the judge referred to his previous conviction for a dwelling house burglary, for which he had been sentenced to a two-year youth rehabilitation order. He had twice breached that order and the current offences were committed during its currency. The judge acknowledged the requirement to have regard to his age. Some reduction would therefore be made, but he was 17 at the time, previously convicted and subject to a youth rehabilitation order. The discount therefore would not be as substantial as it otherwise could be.

In view of his age, the minimum sentence for possession of the firearms was three years, as opposed to five years. However, even considering his age and the principle of totality, the overall sentence would be substantial. The sentences for possession of guns which were working, and in two cases loaded, which were stored in his vehicle would be made consecutive.

We consider that the judge was entitled to impose consecutive sentences for these different offences. The use of a car to store guns and ammunition was distinct from the robbery. Similarly, the possession of Class A drugs with intention to supply is a distinct criminal activity which warrants a further consecutive sentence.

The total sentence of ten years cannot be said to be manifestly excessive. The judge made clear that he had reduced the sentences having regard to the principle of totality. The offending was rightly judged to be very serious indeed, involving a planned robbery with a gun and a carjacking involved a young child, the possession of firearms and the possession of Class A drugs with intention to supply. Although this was a long sentence for someone of his age, the judge properly took into account the applicant's youth in coming to his conclusions. There are, in our view, no arguable grounds to appeal against sentence. Had there been any merit in Sampson's application, the court would have been minded to grant the necessary extension of time. However, for the reasons we have explained we consider that there are no arguable grounds of appeal and his application for permission to appeal against sentence will also be refused.