Gray, R v

This is the judgment of the court to which we have all contributed. Antoin Gray is 24. On 10 May 2017, when he was 22, at the Central Criminal Court he was convicted of murder and sentenced to life imprisonment; the period of 17 years (less time on remand) was specified as the minimum term under s.269 Criminal Justice Act 2003.

Two other young men, Jeramiah Johnson and Codie Goodensimms were also convicted of murder. They each received the same sentence as the appellant.

This is Gray’s appeal against conviction which he brings on a single ground by leave of the single judge. A renewed application for leave to appeal on a further ground upon which the single judge refused leave was abandoned. Other grounds were abandoned at an earlier stage.

The murder took place on 11 September 2016, at around 7.50pm. The victim, Tobi Animashaun left work at a Sainsbury’s depot in Charlton, London. Three vehicles had parked close to the exit shortly before Mr Animashaun came out of the building. As he left the depot a young man from one of the vehicles confronted him. Other young men joined the initial aggressor. They were armed with machetes, knives and baseball bats. They attacked the victim until he collapsed, suffering a number of serious injuries including two fatal stab wounds. The assailants fled in their vehicles and the victim was taken to hospital by ambulance. He died the following afternoon.

It was the prosecution case that the appellant and his co-defendants were at the scene, encouraging it. It was not suggested that they were principals in the attack.

Mr Animashaun had associated with a gang known as ‘T-Block’. Johnson and Goodensimms were associated with a rival gang known as the ‘Cherry Boys’. In April 2012, Goodensimms had been the victim of an assault in which he was stabbed with a metal skewer. Three men, including Mr Animashaun and Olawale Kolebaje, known to others as ‘Hitman’, were convicted in relation to that attack. There was no evidence that the appellant was associated with any gang.

It was the prosecution case that Johnson and the appellant were together in Johnson’s car prior to the attack. They then collected Goodensimms from his home address. Just before collecting Goodensimms, Johnson sent him three WhatsApp messages:

The prosecution alleged that the three men travelled to the scene of the attack in Johnson’s car, a silver VW Golf registration number LL54 AOF. This was one of the three cars parked by the Sainsbury’s depot minutes just before Mr Animashaun left work.

In addition to the WhatsApp evidence to which we have already referred, the prosecution relied upon:

It was the defence case that the appellant was not at the scene.

There were a number of agreed facts before the jury. Video identification parades were held in respect of a number of defendants. One witness, Michael Griffin, attended on four occasions. On the first occasion Johnson’s image was part of the parade. Mr Griffin picked out the image of a volunteer and said “If he’s the one I’m thinking of he is the main instigator of it all. Happened so fast but his face is familiar.” On the second occasion when Goodensimms’ image was part of the parade Mr Griffin picked out a volunteer, saying that he was “the one that kept us away from helping Toby. A machete he kept swinging at us.” On the third occasion the image of another suspect, Curtis Barrow was in the parade. Mr Griffin picked out a volunteer and said that he had “stopped us going towards Toby by brandishing and swinging a machete”. We set out the detail of his identification of the appellant below.

Michael Griffin knew the victim as a work colleague. As he left the depot, he saw a group of five to seven men outside looking at the people leaving the depot. He noticed a blue BMW, a grey Astra and a grey Golf. He went onto a grass verge for a smoke. He saw the victim come out of the depot gate. Mr Griffin said that one of the men asked the deceased, “Are you about this life?” The deceased replied, “Yeah, I work here.” The same man asked, “Are you Hitman’s boy?” and the deceased replied, “Yes”. He appeared nervous. The man who had spoken to him went to retrieve a baseball bat from the blue BMW. The other men present also went to their cars and returned with bats, knives and machetes. They began to chase Mr Animashaun towards the grass verge and so towards the witness. One of them, who was armed with a knife was lunging at the deceased. Another man, a mixed-race man in a blue Adidas top, was swinging a machete in the direction of the witness. Griffin thought he was about 6 feet away from him. A chain worn by the man with the machete fell to the ground, he bent down and picked it up, while still wielding the machete. (DNA on sections of the chain found at the scene was Johnson’s). By this stage the victim was on the ground. The aggressors left in their cars.

Mr Griffin told the jury that he had attended the police station and viewed photographs on four occasions. On the fourth occasion, he attended an identification parade where he identified the appellant as being part of the group of people who were present at the attack. When giving evidence in chief he said that he was “concentrating on not getting his face cut off” by the man with the machete at the time he saw the appellant, but he did remember the appellant from the scene when his face was shown during the identification procedure. He identified the appellant as being part of a group that went over towards the deceased. The man he identified as the appellant was looking up at him. He observed him for some 15-20 seconds.

When cross examined by counsel for the appellant, he agreed that he had been in a state of shock and the whole incident had been fast-moving. There were some 12-14 men involved in the incident. He denied that he had run away when he saw the man with a machete advancing towards him. He said that the incident was fresh in his mind when he attended the identification procedure one month after the event. He was made aware in cross-examination for the first time that he had picked out a volunteer as the main instigator when attending an earlier identification procedure and had also selected a volunteer when identifying the man with a machete. He stated, “The problem with them parades is everyone looks the same”. Later he said that he should have said that everyone looks similar. At the end of cross examination he agreed it was possible he could have made a mistake when identifying the appellant.

Mohammed Dad had been leaving the depot at the same time as the deceased. He saw a male approach the deceased. The male was soon joined by 4 or 5 other men who appeared to be attempting to punch the deceased. In cross-examination by counsel for the appellant he agreed that he would never be able to recognise any of the men involved; there were no street lights and it was getting towards dusk. He stated he turned and ran, as did Michael Griffin.

Michael Thomas had been leaving the depot at the same time as the deceased. He saw a man approach the deceased; they were standing near a BMW. The witness also saw five or six black men standing by a VW Golf. The first man crossed the road to speak to them. Another man went to a Vauxhall Astra and retrieved a baseball bat from the boot. All of the men present then approached the deceased, two were armed with knives, one had a machete, one had a kitchen knife and another had a bottle. He saw the deceased backing away and the men pursuing him down an alleyway. He did not see any of the men strike the deceased with a weapon. A short time later, the men got into the three cars and drove away.

He later attended a police identification procedure and picked out volunteers.

Edward Asika had been leaving the depot at the same time as the deceased. He saw the deceased have an exchange of words with a black male standing beside a BMW. There were six other young, black men in the vicinity along with a VW Golf or Polo. The men backed the deceased against a railing and then into an alleyway. He next saw the deceased leave the alleyway and collapse.

Shannon Penny went through the depot gate before the victim. She saw men attack him and him go to ground. She saw a silver car, either a VW Golf or Punto, pull up. A man ran out from the alleyway, ran down a grass verge and got into the silver car. The driver of the car said, “Oh shit, what have you done?” and drove away. She described the driver as being of Somalian descent and wearing a hat. She did not identify any person at an identification procedure.

Jimmy Majekodumni lived near to the depot. She heard shouting and looked out of her window. She saw three young black men running towards a silver car. She recorded part of the number plate as LL54.

Jacqueline Simmonds was in her garden near to the depot. She heard men shouting. She saw three black men running towards a silver car. She recorded the number plate of the car as LL45.

The appellant did not give evidence.

Jeremiah Johnson gave evidence that he was aware that Goodensimms had been injured by the deceased in 2012. He agreed that he associated with the ‘Cherry Boys’ in that he lived in their area and knew the majority of people concerned. The deceased was known to him as he had been in a relationship with the deceased’s sister for four or five years.

He had been near to the depot at the relevant time as he had gone to purchase cannabis. He parked nearby as he was waiting for his drug dealer. He was in his silver VW Golf and was accompanied by a friend known as ‘Little T’. He saw a BMW parked in front of him and recognised the driver. He saw an Astra arrive and the deceased speaking to a person in the BMW. He saw a man armed with a baseball bat and realised a situation was developing. He did not see any knives or machetes but did witness a man punching the deceased and another lunge at the deceased with a glass bottle.

He was trying to reason with the men attacking the deceased and followed them to the alleyway. He saw the deceased holding a bottle and shouting at the other men. The other men left the scene in the BMW and Astra cars. Johnson returned to his car and was joined by Little T and the drug dealer he was meeting. As he was getting back into his car, he saw the deceased fall to the floor, seemingly unconscious.

He then collected his cannabis and returned to Goodensimms’ flat, where he had been earlier that day. He gave Goodensimms some cannabis and left.

When cross examined on behalf of the appellant, he agreed he was not with the appellant at the relevant time and that he did not see the appellant in the vicinity of the attack. He thought it likely the appellant was hungover. He further agreed that he would contact the appellant’s younger brother, ‘Little Push’, about a music studio.

Goodensimms gave evidence about the attack upon him in 2012. He agreed he did not co-operate in the investigation. He did not know the identity of his attackers until he was arrested for this murder.

On the relevant evening he had been at home with his girlfriend. The previous night, he had attended Johnson’s birthday party. On the day of the killing, Johnson went to Goodensimms’ flat with another male named ‘Tyrell’. He (Goodensimms) sat in Johnson’s car with him. Johnson told him they were going to buy cannabis and he asked Johnson to get some for him. Whilst in the car, Goodensimms had lent his mobile phone to Tyrell; the phone was left in Johnson’s car when it drove away. Goodensimms returned to his flat when they left. He was not in Johnson’s Golf when it left his flat.

Johnson later returned to Goodensimms’ flat and told him what he had just witnessed at the depot. Johnson told him he had seen the deceased being attacked and that he had tried to stop the attack.

All three men were convicted.

The written ground of appeal is that “the learned judge erred in refusing a submission of no case; he erred in failing to appreciate that the quality of the single identification was poor”.

The ground of appeal does not in terms refer to the summing up; but paragraph 31 of the Advice asserts that “the particular weaknesses and the effect of those weaknesses was not sufficiently delineated by the learned judge in the summing up … We submit that the learned judge did not give sufficient guidance to the jury in respect of their approach to this issue”.

Leave was granted both as to the submission and as to the summing up.

Ms Bennett Jenkins submitted that the prosecution case should not have survived the submission of no case to answer. She mounted before us as she had before the judge a root and branch attack on the identification evidence of Mr Griffin. She submitted that it was wholly unreliable; this was a fast moving situation where the witness was afraid for his own safety, others had said that the lighting was not good. Mr Griffin had on three earlier occasions picked out three volunteers when there were on the parades images of people who were said to have been actively involved in the fight. To that she added that Mr Griffin had said that he had paid most attention to the man wielding the machete in his direction. This was Johnson yet he did not pick Johnson out when his image was on the parade. Furthermore he had picked out two different volunteers on two different parades saying that the person identified was the one wielding a machete. Finally she submitted that there was no supporting evidence; the cell site evidence was as consistent with the appellant being at home or at his girlfriend’s house as it was with his being at the scene of the attack.

The judge acknowledged that the disputed identification by Mr Griffin was the vital evidence against this appellant. In dealing with the submission of no case to answer he correctly observed that the cell site evidence “does not, standing alone, place the defendant at the scene”.

The judge concluded that “this is not, in my judgment, properly to be classified as a fleeting glance” and on that basis refused the submission of no case to answer.

In accordance with the guidance in R v Turnbull [1977] 1 Q.B. 224, the judge was required to assess whether the evidence of identification was “good” or “poor”. A “fleeting glance” is not the test, but an example of poor quality identification evidence.

The judge did not in terms express a judgement as to whether the quality of the evidence was good or poor. Mr McGuinness identified the range of identification evidence as a satisfactory identification in good circumstances at one extreme and a fleeting glance in poor conditions at the other extreme. He submitted that this case was not at either extreme and rightly accepted that it was nearer to the lower end of the range. We agree.

The quality of the identification evidence being poor, it follows that the judge was under a duty to withdraw the case from the jury unless there was other evidence which supported the correctness of the identification.

In a short ruling, the judge did not seek to identify and particularise any other potential supporting evidence.

As to cell site evidence, the judge said that “Cell site evidence is available of which this can be said: it does not, standing alone, place the defendant at the scene but could, if the identification is found to be accurate – be evidence which would be consistent with the finding that he was”. It appears that the judge regarded the disputed identification evidence as potentially enhancing and explaining the cell site evidence; rather than treating the cell site evidence as capable of supporting the identification.

The judge did not allude to other potential supporting evidence:

The Court in Turnbull said that “odd coincidences can, if unexplained, be supporting evidence”.

The appellant exercised his right to remain silent in interview. This was a matter that the judge was entitled to take into account in deciding whether or not there was a case to answer. See Section 34(2)(c) Criminal Justice and Public Order Act 1994.

In our judgment, had the judge analysed the evidence in this way, he would have come to the conclusion that there was evidence capable of supporting the identification sufficient properly to leave the case to the jury.

At the conclusion of the Ruling, the judge observed that the Jury “will, of course, receive careful direction on the need for care in considering such evidence, in accordance with the well-known case of Turnbull.”

We are satisfied that the evidence of Mr Griffin was admissible and that the judge was right to reject the submission of no case to answer.

The nature of the identification evidence was such as to require careful and tailored directions to the jury.

The summing up was in three parts. First, the judge directed the jury as to the relevant issues of law. Second, he reminded the jury of the evidence of the eye witnesses to the incident called by the prosecution together with a brief reminder of part of the evidence of the prosecution cell site expert. Third, he dealt with the evidence of the appellant’s co-defendants.

Much of the prosecution evidence consisted of circumstantial material relating to telephones. This was before the jury in written form. The judge simply referred to the written materials as evidence the jury should consider and conducted no further analysis of it.

In the first part of the summing up the judge dealt (at page 9 of the transcript) with the issue of identification in this way:

“Now, what about identification evidence? The case against the defendant Gray depends to a large extent, does it not, on the correctness of the identification of him made by Mr Griffin? Which he says is mistaken. To avoid the risk of any injustice in this case as such as has happened in some cases in the past, I must therefore warn you of the special need for caution before convicting the defendant, Mr Gray, in reliance on the evidence of identification. A witness who is convinced in his own mind may as a result be a convincing witness but may nevertheless be mistaken. In the past mistakes have been made as you know. And you must be careful therefore to examine evidence of identification with care.

But of course Mr Griffin, upon whose identification evidence the Crown relies, took part as you know in three other identification procedures in which he picked out volunteers who could not have been involved in these events. And so, submitted Miss Bennett-Jenkins yesterday, that alone she says goes to destroy the credibility of his purported identification of the defendant Mr Gray. But that is a matter for you to consider carefully. And I will be reminding you of his evidence in some detail in due course”.

In the course of his review of the evidence of the eye witnesses, the judge dealt with the evidence of Mr Griffin. He recited the narrative provided by Mr Griffin. He set out the descriptions provided by Mr Griffin of those involved in the attack. Insofar as any description was given of the appellant, it was as one of several males and was very general i.e. 19 to 25, dark clothing, mix of skin colour (within the group).

The judge concluded his review of Mr Griffin’s evidence in chief with this:

“Well what then of the circumstances he describes of his identification of Mr Gray that is so much in dispute in this case. And which you will consider very carefully indeed”.

The judge then dealt with matters raised in cross-examination. We have a full transcript of the cross-examination. Leading counsel began by dealing with the lighting at the time of the incident, the speed with which events occurred and the witness’s shock at what he saw. By reference to photographs counsel dealt with the witness’s position at the relevant time. Counsel also asked the witness about the difficulty of identifying someone at a procedure conducted over a month after the event. Only after dealing with all of those matters did counsel turn to the fact that Mr Griffin had made incorrect identifications at three other procedures. Counsel established that the witness had picked out three innocent volunteers. This was the point at which the judge’s review of the cross-examination commenced. The judge reminded the jury that Mr Griffin had not realised until he came to give evidence that he had picked out innocent volunteers on three separate identification procedures. The judge’s rehearsal of the evidence given about the procedure involving the appellant was this:

“As for the fourth identification which was that of Mr Gray he was asked “Well do you not accept that you have made a mistake in that identification bearing in mind the mistakes you made before?” And he said “I don’t accept that I may have made a mistake in that case”.

The judge concluded by directing the jury to consider the identification evidence on the basis of the law as he had previously directed them and with the caution and care that he had told them they should exercise.

After his review of the prosecution evidence the judge gave the jury a mid-morning break. Junior counsel for the appellant made representations about two issues. The judge adopted the defence submissions. When the jury returned he gave further brief directions about Mr Griffin’s evidence:

“…a couple of matters concerning Mr Griffin, the identifying witness of Mr Gray. I am asked to remind you – and it is right that I should – that his evidence was that one person came towards him with a machete. And when he identified two people as coming that was wrong.

And so far as the errors that he made in identification are concerned when cross-examined he did in fact say, when it was put firmly to him that he might have made a mistake, he agreed that he could have made a mistake, which you will recall”.

The judge then moved to the third part of his summing up. Nothing more was said about Mr Griffin’s evidence and how it should be approached.

Ms Bennett-Jenkins submits that the judge should have and failed to spell out to the jury that the risk of injustice to which he was referring when warning them of the need for caution was a risk of wrongful conviction. Mr McGuinness submitted that the jury were warned adequately as to why there was a need for special caution when considering identification evidence. We agree with that submission. The passage at page 9 quoted above identified that the need arose because of mistakes having been made in the past and because a mistaken witness may be a convincing witness. The judge set out the position in clear terms. It was not necessary for him to use any particular form of words. In the context of a criminal trial the jury were bound to understand from the judge’s directions that mistaken identification leads to wrongful convictions.

However, Mr McGuiness accepted that, to use his language, the judge’s analysis of the identification evidence left something to be desired. He was right to do so. The review of the substance of the evidence of Mr Griffin had no link to issues relevant to his identification of the appellant. Thus, there was no reference to the lighting, to the view available to Mr Griffin as he watched events unfold, to the speed of events or to the shock of seeing a violent incident and its potential effect on the ability accurately to observe those involved.

The judge concentrated on the fact that Mr Griffin had picked out innocent volunteers at other procedures. He referred to it in his initial legal direction and returned to it when reminding the jury of the cross-examination of Mr Griffin. We were told that this feature was a particular focus of the submissions made on the appellant’s behalf to the jury at trial. This is unsurprising, but it did not absolve the judge from the need to deal with all matters relevant to the identification issue. In any identification case the judge must set out the matters which are relevant to the cautious approach to be taken by the jury.

Mr Griffin made a concession to defence counsel at the conclusion of cross-examination as to the possibility that he had made a mistake in relation to his identification of the appellant. This was not referred to by the judge when he reviewed Mr Griffin’s evidence in detail. The judge dealt with this satisfactorily later in his summing up. His failure to do so correctly in the first instance would not be of any consequence had that been the only issue with the summing up. In the context of the other deficiencies we have noted, it assumes some modest significance. The judge did not make it clear that the early recital of Mr Griffin’s evidence was wrong.

Mr McGuinness counters the deficiencies as acknowledged by him with the fact that the judge did not give the jury any assistance with the circumstantial evidence which it is said go to support the identification of the appellant by Mr Griffin. Mr McGuiness relies in particular on the following matters:

Mr McGuinness argues that the jury were entitled to consider the coincidence of Mr Griffin having identified someone as being involved in the murder who also had these various connections to Johnson and Goodensimms. Once the jury had determined that Johnson and Goodensimms were participants in the murderous attack, this coincidence was bound to be significant. As we have observed already, the jury had no explanation from the appellant about any of the circumstantial evidence. The jury had evidence from Johnson, but they rejected it.

It is against the background of the totality of the evidence available to the jury that the prosecution invite the conclusion that, notwithstanding any deficiency in the summing up, the appellant’s conviction was safe.

Ms Bennett- Jenkins submits that this conviction is unsafe. In addition to her attack on the identification evidence she reminded us that unlike his co-defendants there was no evidence that the appellant had any connection with any gang. Although he and Johnson were friends, he scarcely knew Goodensimms. If the prosecution’s theory that the appellant spent two hours in the car with Johnson were correct some of his DNA would have been found in the vehicle. None was found. Fingerprints and DNA from both Johnson and Goodensimms were found in the car.

The evidence upon which the Crown rely is set out at paragraph 63 above. In response to those points Ms Bennett Jenkins submitted that the cell site evidence about the location of the appellant’s mobile phone was as consistent with his being at home or at his girlfriend’s house as it was with his being with his co-defendants or being at the scene of the killing. This is true but there was no evidence that the appellant was at home or indeed anywhere else in the vicinity before after or during the attack.

Ms Bennett Jenkins submitted that the evidence of calls (and the cessation of calls) between Johnson and the appellant that evening was neutral. We disagree. It was evidence upon which the jury could rely in determining whether at the time of the attack the appellant and Johnson were together. Johnson’s evidence to the contrary was rejected.

The evidence of the WhatsApp message was important. It was suggested on behalf of the appellant that this was a reference to the appellant’s younger brother (Lil Push) and that the message was designed to convey that Johnson was bringing him not the appellant to Goodensimms’ address. That is not what the message says. That on occasion (according to Johnson) Johnson had arranged with the brother to use a recording studio does not assist the appellant. In any event the jury dismissed Johnson’s evidence.

There was little Ms Bennett Jenkins could advance in relation to the powerful evidence about the change in usage of the appellant’s mobile phone. As we have set out above he had used the phone on over 15000 occasions in the previous month. He stopped shortly after receiving a call from Johnson. There was no explanation for this. Johnson too changed phones. The inference that Johnson had instructed him to change the phone he was using is very strong as is the likelihood that the reason for his having done so was to distance himself from the attack.

Having reviewed the whole of the evidence and notwithstanding Ms Bennet-Jenkins eloquent submissions we are satisfied that this conviction is safe.

The appeal is dismissed.