Avorgah v R

This is an appeal against conviction with the leave of the single judge who granted the necessary extension of time of 3 years and 29 days.

On 2^nd February 2011 in the Central Criminal Court the appellant was convicted of murder and of two counts of wounding with intent to cause grievous bodily harm. He was sentenced to detention for life with a minimum term of 19 years, less days spent on remand for murder; and concurrent sentences of 12 years detention for the wounding offences.

He stood trial on those charges with three co-accused, Kofi Osimeh, Daniel Riley and Matthew Lanihun. The jury could not agree on their verdicts, in relation to the co-accused, and a retrial was ordered. At their retrial, which took place in July 2011, each of them was acquitted on all counts.

Three grounds of appeal are now advanced on behalf of the appellant by a different legal team to that which represented him at trial. Each of those grounds depends upon the admission of fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. They are:

The appellant also seeks leave to appeal and the necessary extension of time to do so on a fourth ground not put before the single judge, namely that for the reasons given in the first three grounds and on analysis of the evidence in the case, there is a lurking doubt about the safety of the appellant’s conviction.

In the early hours of Saturday 27 March 2010 Julian and Daniel Borja, who are brothers, and who were then 21 and 19 years old respectively, were walking with their friend, Godwin Lawson towards the Borjas’ home in Stamford Hill in North London. Their route took them along Amhurst Park towards the junction with Durley Road. Godwin Lawson was then 17 years old. He attended a football training academy with Oxford United and spent his time between Oxford and London where his parents and friends lived.

Amhurst Park is a main road in a heavily populated residential street in Hackney. There is a hotel, the Amhurst Lodge Hotel on Amhurst Park, which has a fixed camera pointing down towards its car park (camera 4); and the three young men were captured on it, for a period of seconds, as they walked past it on the pavement on the south side of Amhurst Park. Daniel Borja was wearing light coloured clothing, a grey tracksuit top and bottoms. Godwin was wearing a dark jacket with a furred hood, and light trousers. As they reached the Amhurst Park/Durley Road junction they encountered a group of four men. Part of the incident was captured from a distance of 160 metres from the junction on a CCTV camera, positioned near Stamford Hill British Rail Station, camera 64. It did not record the start of the incident, which occurred between the time the Borjas and Godwin Lawson passed from the sight of camera 4 and came into sight of camera 64, which was a period of about 18-23 seconds.

The incident itself also lasted a matter of seconds. By the time it was over, Godwin had been stabbed once through the heart. He collapsed almost immediately. Police officers stopped on the scene within seconds, after they were flagged down by Julian Borja. Despite the officers’ efforts and those of the Borjas, Godwin Lawson died at the scene. Both of the Borjas suffered life threatening injuries but went on to make a full recovery. Julian Borja was stabbed twice – once to the right side between his rib and hip and once to the stomach (his injuries were such that his intestines were protruding from the wound to his side); he also had a slash to the right shoulder blade. He suffered significant internal bleeding. Daniel was stabbed four times: twice in the back, one of those wounds puncturing his lung, once to the right buttock, and once to the left arm. He also suffered significant internal bleeding.

When a police officer at the scene asked Julian Borja who had done this, he said he didn’t know as they had masks on. He was asked to describe them; and said he didn’t want to get involved, and told the officer to “fuck off”. A former girlfriend of Julian Borja, together with her mother and another friend, happened on the scene. Julian Borja told them that some boys had jumped them. He also made the comment: ‘How can a man roll up like that and shank [stab] someone. If I don’t make it tell my mother I love her.’ She also spoke to Daniel Borja. He said that “A group of boys with black balaclavas rushed us. They started to shank us. We were trying to fight them off. I sneaked out of the circle and could see Julian on the floor. I ran back, I could see Godwin trying to stop the fight. We all kept getting stabbed.”

Julian Borja and Daniel Borja were interviewed in hospital a few hours after the incident. Julian Borja said the attacker had a knife which he dropped and the attacker then picked it up and threw it in the bushes. The knife, which had a retractable blade, was later recovered from the scene. Forensic examination established it had no blood on it. Julian Borja later admitted that the knife was his. Daniel Borja said he went with his brother and a friend to a shop to buy fags, and six people wearing balaclavas attacked them. He declined to say anything else.

Swabs were taken from spots of blood which were recovered from the pavement and the kerb in Durley Road. The profile matched the DNA profile of the appellant. CCTV footage showed that half an hour after the incident the appellant attended the Royal Free Hospital with Daniel Riley. The hospital is a few kilometres from where the incident took place. The appellant was suffering from two small cuts to his index finger which had been bleeding. The cut was not treated. The appellant returned to the hospital later that day and said the injury had been caused when he tried to rip open a can of coke. The cuts were treated with steristrips and he left.

Investigations showed that the appellant and his co-accused had travelled to and from Amhurst Park in a hired Ford Focus. When the vehicle was examined the appellant’s blood was found on a piece of carpet in the driver’s foot well. Telephone records showed that the appellant and the three co-accused were in contact with each other during the day and evening with increasing frequency up to the time of the attack. All of them were then in the vicinity of Amhurst Park at the time of the incident. Telephone contact ceased for a four-hour period around the time of the attack, consistent with the four of them being together. The next morning the telephones of all four were used in the Muswell Hill area before eventually returning to the areas of their home addresses. All of them changed their mobile telephone numbers within days of the incident.

On 29 March 2010, the appellant checked into a travel lodge in Southwark. It was booked in a false name, with a false address and stolen credit card details. The appellant checked in using that booking that evening.

The appellant was arrested on 31 March 2010. He gave a false name and address. At the time he was in possession of an electronic key card for room 704 at the Travel Lodge in Southwark. It was noted that he had an injury to the index finger of his right hand.

He was interviewed on three occasions in the presence of his solicitor. He made no comment to all questions. The three co-accused were all arrested on 8 June 2010. All three made no comment in interview.

The trial of the appellant and his co-accused began on 3 January 2011. The appellant was represented by an experienced firm of solicitors and leading counsel. In his defence case statement served in October 2010, his defence was alibi. He denied that he had been present at the scene of the incident, and said he was with Riley. However, in Riley’s defence case statement served late, at the beginning of the trial, Riley said that the appellant had been present and had been principally involved in the violence. On the second day of the trial, the appellant then served a further (handwritten) defence case statement to which we shall refer shortly.

The prosecution case in summary was this. The Borjas and Godwin Lawson were ambushed whilst on their way to the Borjas’ home by the appellant and the co-accused who ran up Durley Road towards them. At the head of this group was a black male wearing a balaclava and carrying a knife. This was the appellant. He stabbed Julian Borja to the stomach and upper body. Daniel Borja and Godwin Lawson went to help Julian Borja, and each in turn was attacked and stabbed.

The prosecution called the Borjas, three independent witnesses, who saw part of what occurred, and Julian Borja’s former girlfriend. The prosecution relied on the CCTV footage recovered, including that from cameras 4 and 64, and on the appellant’s conviction in 2009 for having a bladed article in a public place, which it was permitted to adduce as evidence of his bad character.

In his further defence case statement the appellant admitted presence, and stabbing the Borja brothers, but claimed to have been acting in self-defence. The account now given was very detailed. He said that he was in the car driving along Amhurst Park and saw Godwin Lawson. He then parked the car in Durley Road and went to speak to Godwin Lawson, as he had not seen him for a while, leaving the others in the car. When he approached Lawson, he said hello, not realising the Borja brothers were present. He then realised the brothers were there, and Daniel Borja moved towards him aggressively. Godwin moved in front of Daniel to fend him off, but Daniel dodged Godwin, and rushed towards the appellant with a knife in his hands. The appellant managed to take the knife off Daniel and attacked him with it, in reaction to Daniel trying to stab him. Julian then punched the appellant hard to the back of the head. The appellant therefore swung at Julian instinctively, and hit him with the knife. Julian then pulled out a knife and tried to attack him, at which point Lanihun fly kicked Julian to stop him attacking the appellant. The appellant and the co-accused then ran back to the car parked in Durley Road and left the scene.

At trial, the evidence given by the Borjas and the appellant was as follows.

Julian Borja said he was good friends with Godwin Lawson and Godwin was due to stay at his house that evening. They were in contact by telephone and he and his brother met Godwin at Manor House near the train station. They then began making their way home down Seven Sisters Road. They were in a good, happy mood and were not expecting any trouble. As they approached the junction of Amhurst Park/ Durley Road he saw a group of young men coming towards them. They were approaching from Durley Road. One of them, who was wearing a balaclava, was very much at the front of the group and was holding a knife. He came straight up to Julian and stabbed him in the stomach. Julian turned to run away but was stabbed a second time in the back. He ran across Amhurst Park and ran around a parked car. One of the other youths kicked him. Julian had a broken hand at the time which was in a caste, and the youth kicked him in the hand and upper body. He saw that Daniel and Godwin were running and his brother fly-kicked someone. He and Godwin then ran to help Julian. He could hear they too were being attacked. Godwin told him he had been stabbed and was yelling ‘come back’ or words to that effect.

The man who stabbed him was a black male, wearing a balaclava or woolly-type hat and wearing a blue type of tracksuit. He was taller than him and of stocky build. He and the other youths were complete strangers.

Julian was himself carrying a knife. It was a little ‘rainbow’ knife with a folding blade and it was in the pocket of some shorts he was wearing underneath his trousers. He tried to get it out but it got stuck. He shook his leg and it fell out. By this time the gang of youths had fled up Durley Road. He threw his knife away and went to see if the others were all right. Daniel told him that he too had been stabbed and Godwin was on the ground, badly hurt. Julian flagged down a police car and the officers got out and helped them. He could not describe his attacker other than that he was wearing a balaclava and blue tracksuit. He did not know the colour of his skin.

He was cross examined at length and in detail on his account. In cross examination he said the reason he carried a knife was because of incidents such as this one. He denied that the reason he had thrown it away was because he had something to hide. He denied that he and his brother were the aggressors, or that either he or his brother knew the appellant, or that his brother had started the fight and he had gone to his assistance.

Daniel Borja also said they were walking along the street when they were ambushed by a gang. They all arrived together. He saw the one in front ‘punch’ his brother. It was only later that he realised he had, in fact, stabbed him. The three of them split up and ran off. He and Godwin ran across the road, between some parked cars. One of them was shouting out ‘wet him, wet him’. His brother was fly-kicked to the ground. They went to his assistance and began fighting with some of the gang. He realized he had been stabbed and tried to run away. He looked back and saw the group had made off down Durley Road. He asked Godwin if he was all right but he looked dizzy and then collapsed. Daniel tried to help him and pressed his chest. He himself was bleeding as he had been stabbed twice in the back, as well as his arm and right buttock. He started to feel dizzy and was taken to hospital. When an officer spoke to him the next day he said he would not co-operate and did not want to go to court. He said this because he was afraid of reprisals. He did not see the faces of anyone as they were covered up. He did not know who they were or the reason for the attack.

In cross-examination he denied that he knew his brother was carrying a knife that night or that he had lied to the police. He did not know the appellant and had not been in a ‘one to one’ fight with him that night.

The appellant’s account was that he knew the two Borja brothers. He used to hang around with Julian and knew Daniel, his younger brother. He saw Daniel at the Notting Hill carnival in 2009. Two to three weeks before this incident he said there was an incident involving Daniel. He was pestering the appellant’s girlfriend as a result of which the appellant slapped his face. He said he also knew Godwin Lawson. On 26 March 2010 he and the co-accused decided to go to a rave in Muswell Hill. His sister had hired a car for him. As he was driving into/towards Amhurst Park he saw Godwin. He regarded him as a cousin and said to the others that he was going to speak to him to get his telephone number. He turned the car around, parked the car round the corner in Durley Road (the eye witness evidence was that it was someway down that road) walked up to the junction with Amhurst Park, turned left into it, walked one or two houses along it, and then spoke to Godwin. He was friendly towards him but then the appellant realised he was with the two Borja brothers. Almost immediately Daniel charged at him. The appellant backed away towards the junction, but Daniel came after him brandishing a knife. Godwin initially tried to intervene but then let Daniel pass by. The appellant was able to take the knife from him which he then used to defend himself. When the others who had remained with or in the car heard the commotion, they ran up to where the appellant was.

Everything happened very quickly; he did not try to kill anyone. Julian then joined in and hit the appellant on the back of his head. He saw that he too was holding a knife. They began fighting and the appellant stabbed him in the side. One of the others side-kicked Julian which enabled the appellant to make an escape. He drove off but since he was bleeding he asked Riley to take over. He sat in the back and at one point threw the knife, taken from Daniel, out of the window. Godwin had not said or done anything aggressive and the appellant did not know how he had come to be stabbed; but however it had happened, the appellant was not responsible. Afterwards he was in a panic and both he and the others decided to stop using their mobile telephones. He gave a false name because he did not want to be arrested and did not think his account would be believed.

In cross-examination he said he had initially denied being present at the scene as he was trying to distance himself from what had happened.

The issue for the jury was whether the appellant fatally stabbed Godwin Lawson and whether his use of the knife against either of the Borja brothers was or might have been in self-defence. The judge directed the jury that if they were not sure that there had been an ambush, it would follow that the appellant (and his co-accused) had been acting in self defence because they had been attacked by the Borjas.

During the course of their deliberations, the jury sent a note to the Judge which said :

“The majority of the jury would like to visit the scene of the incident. We are concerned about the following (a) timings of the event; (b) distances between the hotel and Durley Road. We wish to make a judgment in regard to the 18 seconds prior to the CCTV footage. Failing a visit we would like to establish distances related to the scene, distance from the hotel camera to Durley Road.”

After discussing the matter with Counsel the Judge told the jury that a view was unnecessary and inappropriate. An admission was made as to the precise location of the CCTV camera in Amhurst Park. The Judge also made it clear that the 18 second figure was not an accepted figure and it was for them to decide what was the appropriate period.

We turn now to the grounds of appeal.

The prosecution are not able to say after this length of time, whether the statement of DC Alawiye, dated 7 January 2011 was produced at the first trial, rather than formally served. We proceed on the assumption therefore, as we are invited to do by both sides, that the statement was not served until the 6 July 2011 in the period leading up to the retrial of the appellant’s co-accused.

In his statement DC Alawiye recorded the length of time it took him to walk from the Amhurst Lodge Hotel to the junction of Durley Road, on the day he made his statement, that is on the 7 January 2011. He said he did it twice. It took him 40.1 seconds on the first occasion and 37.4 seconds on a second occasion, when he was walking at a slightly brisker pace.

Mr Bajwa QC submits this evidence is inconsistent with the account given by the Borja brothers in evidence that they were ambushed. Had they been walking at a normal pace, and there was never any suggestion that they were not, they should have reached the junction at which they alleged they were ambushed, around 37-40 seconds after passing the hotel, rather than the 18-23 seconds, which it appears that they did. This means they must have jogged or run, some of the distance between the hotel and the junction, which significantly undermines their account that they were ambushed rather than being attacked.

The jury were therefore, he submits, deprived of crucial evidence on a central issue, about which they were concerned, as can be seen from their note. There was therefore material non disclosure and a realistic possibility that had the statement been disclosed, the jury would not have convicted the appellant on any count. Further or in the alternative, this is fresh evidence that should be received in the interests of justice under section 23 of the Criminal Appeal Act 1968: it is credible, reliable and material evidence, and there is a reasonable explanation as to why it was not adduced, namely the Crown’s failure to disclose it at trial.

We start with the observation that as Mr Bajwa QC has to concede, the hypothesis now being advanced on the basis of this further material (i.e. that the Borjas rushed up the road to the appellant) is inconsistent with the account given at trial by the appellant in his second defence case statement and in his evidence.

This account was as we have said, that he saw Godwin Lawson (but not the Borjas) as he was driving past them in Amhurst Park, that he turned the car round and parked it in a side road, that he went up to the junction on his own (the co-accused remaining in or with the car), that he had a friendly word with Godwin Lawson, at a point some way from the junction, and that neither Godwin Lawson nor the Borjas seemed to have appreciated the appellant was there until they arrived at the junction (“when he [Daniel] saw me he just charged at me straightaway”).

There were some fixed agreed points (which it is not necessary to detail). These enabled the prosecution to challenge this account on the basis that there was simply not enough time for all these things to have happened in the time that elapsed between the point when the Borjas and Godwin Lawson moved out of sight of camera 4, and the point where the fight involving a number of men could be seen on camera 64, a period of 18-23 seconds later (the footage from camera 64 showed a figure that must have been Godwin Lawson standing at the junction, then four people running out of Durley Road, 18 seconds after Lawson and the Borjas were seen on camera 4, and then seven men crossing Amhurst Park). Mr Denison QC made this submission to the jury in his closing speech, and the issue was then dealt with by counsel for all the defendants in their closing speeches. It was in these circumstances that the jury asked their question.

We are quite satisfied, having seen the material ourselves, that the jury and indeed the appellant and his then legal team, had all the tools necessary to make the relevant calculations about timing for themselves - using the combination of the distance calculable from the very detailed plans that were available and the CCTV footage; that they were able then to draw any necessary inferences about the speed at which the ground was or was not covered by Godwin Lawson and the Borjas; and that they were also able to relate this information to the account the Borjas gave at the time. It is also clear from the transcript of the discussion between counsel and the Judge after the jury asked their question, that all parties were satisfied that the jury were in a proper position to deal with these issues on the material they had before them.

As Mr Denison QC for the respondent says, it follows that the timing issue did feature at the trial, albeit in the context of whether it was capable of undermining the appellant’s case as it then was, and at best, this further material only provides additional information – which the appellant was in a position to work out in any event - in relation to an issue of timing and distance that was already under consideration. The submissions now made by the appellant as to timing were therefore capable of being made by him (and to an extent were made by him) at the time. We would add, as is obvious, that the material was not of some discrete forensic finding (the presence of blood for example, or details as to DNA about which the defence was in ignorance) but only the length of time it took to walk from point a. to b., a matter under consideration by the jury as we have said.

Further, though, as Mr Denison QC accepts, the timing evidence signifies that Godwin Lawson and the Borjas covered the ground more quickly from point a. to b. than the average walking pace, as he says, this could have been for any number of reasons. In our judgment it certainly does not follow that they ran, or that they ran to attack the appellant or that the Borjas’ evidence is undermined, let alone to a significant extent, as Mr Bajwa QC submits.

In the circumstances, we do not consider the material in DC Alawiye’s statement affords grounds for doubting the safety of the appellant’s conviction, whether it is looked at in isolation, or whether it is considered together with all the other evidence against the appellant (to some of which we shall refer shortly) even if the court was disposed to admit it pursuant to its power to do so under section 23 of the Criminal Appeal Act 1968.

There is one further point however. When considering whether to exercise its discretion to admit fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968, the court is concerned with what is necessary or expedient in the interests of justice. The interests of justice in this context involves a consideration of the interests of all those involved in the proceedings: the prosecution, the defence and the victims of crime; as well as the public’s interest that criminal proceedings should be resolved fairly, and that justice should be done. The appellant in this case advanced a defence of alibi, which he abandoned after his alibi contradicted it; he then advanced a completely different version of events in his defence at the trial. He now invites this court to admit this further evidence, to support a case which contradicts both of his earlier accounts in his two signed defence case statements and the account he gave on oath in his evidence. This is on the basis that the material casts doubt on the safety of his conviction, a matter we have already addressed above; and presumably also on the basis that it would support a third version of events to be put forward on his behalf if there were to be a retrial. The trial process is not however a tactical game but a search for the truth: see R v H (Peter) [2002] EWCA Crim. 730; and we are not persuaded that these particular facts provide any proper basis for the court to exercise its discretion to admit such further material in any event.

The argument made in Ground 2, is that the evidence of Julian and Daniel Borja and the admissions made at the retrial of the appellant’s co-accused is fresh evidence which further undermines the credibility and reliability of their evidence, in a number of respects.

These are set out in a schedule prepared on behalf of the appellant. Various inconsistencies are highlighted, which are said to demonstrate either that the Borjas lied at the first trial or at the second.

There may be cases, though we would anticipate they would be rare, in which what is said by a witness at a second trial, may serve to undermine the safety of a conviction at an earlier trial. But this material falls a long way from establishing such a case in our view.

One starts with the general proposition, that the fact that material becomes available after a trial in which it might have been deployed, had it been available at the time, does not of itself necessarily have any impact of the safety of a conviction. Were it to be otherwise, an earlier conviction would always be unsafe, where the offender’s co-accused had to be retried and the credibility of the witnesses at a re-trial was further undermined. Likewise when a witness at a trial is subsequently convicted of an offence, the point raised under Ground 3.

The careful and very detailed analysis of the differences in the Borjas’ evidence between one trial and the next, seems to us, with respect, to demonstrate nothing which adds significantly to the wealth of material already available to the appellant which could be and was used to attack their credibility in relation to each of the various matters that are highlighted. These were identified by Mr Denison QC in a list which Mr Bajwa QC did not gainsay either in writing or in his submissions, and include the following. For Julian Borja, his possession of a knife at the time of the incident which he had disposed of before the police arrived, and about which he had lied to the police when interviewed; his failure to co-operate with the police at the scene; what he had told the police whilst at the hospital; his association with gangs, as borne out by rap material; and his attendance at the 2009 Notting Hill Carnival, where an admission was made to confirm that he had lied about this. The same is true of Daniel Borja, who was cross-examined as to his possession of a knife recovered at the scene and as to his awareness of the knife that his brother ultimately accepted that he was carrying; his unwillingness to attend court; an incident in May 2009 in which he had been stabbed and in relation to which he lied to the police/medical staff at the time; and about his association with gangs.

The transcripts of the second trial show nothing out of the ordinary. They show that counsel for the defendants at the retrial took the forensic opportunities offered by their possession of the transcripts of the first trial, as they were entitled to. They do not show however anything different or more compelling to undermine the Borjas’ credibility. In truth, we think the further ‘lies’ or inconsistencies are of little additional weight compared to the material available and deployed at the appellant’s trial.

As for Ground 3, it is said there was material non-disclosure of, or alternatively fresh evidence relating to Julian Borja’s bad character. This is his possession of a knife concealed on his person on 27 January 2011, shortly after he gave evidence and shortly before the end of the appellant’s trial (it occurred on the day the judge began his summing-up). Mr Bajwa QC submits the fact of Julian Borja’s arrest should have been disclosed. Had it been disclosed it was material which was capable of further undermining his evidence and that of Daniel Borja, and of bolstering the appellant’s defence.

One difficulty with this submission is that the defence did have available evidence of a similar (and stronger) character – which they chose not to deploy at trial, namely Julian Borja’s previous convictions, which included a conviction for carrying a screwdriver in a public place. But in any event, we do not think this material, even if the Judge had been disposed to admit it, adds anything of significance to the material the jury already had and which was the subject of admissions by the prosecution. This included Julian Borja’s possession of a knife during the incident on 27 March 2010, the fact that he threw it away at the scene, and the fact that he then lied about his possession of it. The point is even weaker in relation to Daniel Borja. The fact that Julian Borja was in possession of a knife in January 2011 adds nothing to the appellant’s case put to Daniel Borja (and denied in cross-examination) that he knew that his brother had a knife on the 27 March 2010.

In the light of our conclusions on the first three grounds of appeal, we do not think necessary to elaborate to any great extent on our further conclusion that this is not a case which leaves any arguable lurking doubt as to the safety of the appellant’s conviction. It is a ground which Mr Bajwa QC did not develop orally and we would refuse leave.

The appellant’s case and matters relating to the credibility of the Borjas were fully ventilated before the jury. There could be and is no criticism of the summing up of his case. We have seen the CCTV footage which was before the jury; and the account given by the Borjas was broadly consistent with it. Of the three victims, two suffered severe stab injuries; and one was stabbed to death. In contrast, the appellant had two small cuts to his fingers which are classic injuries sustained by someone holding and wielding a knife. The Borjas’ injuries (including two stab wounds to Daniel’s back) were consistent with their account that they were attacked whilst running away, as were the statements made by both of them within seconds of the attack having occurred. Julian Borja – who was right handed - had his right hand in a caste, which undermined the appellant’s account that he had the knife out and wielded it, but was consistent with Julian Borja’s account that he struggled and failed to get out the knife that he admitted he had that night, after he was attacked. There was moreover, the evidence of the appellant’s behaviour after the incident, as well as the untrue alibi advanced until his co-accused placed him at the scene. In our view, this is not a case where we are left with any lurking doubt. The jury could be sure on the evidence that the appellant’s account of the incident was not credible, and that the prosecution case against him was a compelling one.

We are satisfied the appellant’s conviction is safe. Accordingly, his appeal against conviction is dismissed.