R v Craig Shaw

This is an appeal against conviction brought by leave of the single judge.

On 14 June 2023, a group of men arrived in two vehicles, a Ford Focus and a Ford Transit, at an address in Taunton. There was a third vehicle in the area, but that vehicle and its occupants did not form part of the prosecution case at trial. A man named Jacob Kawka was using a temporary portacabin in the grounds of the Taunton property as a workshop for his jewellery business. His car, a ten year old Porsche Cayman, was parked nearby. The occupier of the property, Andrew Brailsford, was working from home.

Mr Kawka was in his workshop when he heard a male voice. He saw a man dressed in black clothing, wearing a balaclava, with a machete in his hand, trying to enter the portacabin. He described the man as white, less than six feet tall and of slim build. He saw two other males similarly dressed in the doorway. The first man grabbed his arm and took him into the living room of the house.

By the time Mr Kawka arrived inside the house, Mr Brailsford had already encountered two of the intruders. He had heard a commotion outside and went to investigate. Despite Mr Brailsford's efforts to shut the door, a white man of average height, wearing a black balaclava and holding a machete, forced his way into the house and demanded "weed" and money. He grabbed Mr Brailsford by the upper back and pushed him down onto the floor.

A second male, who was described as black, larger and taller than the first man, similarly dressed and also carrying either a machete or a crowbar, came in with Mr Kawka whom he told to get onto the floor or he would be killed. He seemed to Mr Brailsford to be the ringleader of the group. A third black man, similarly disguised, started to interrogate Mr Kawka about where drugs and money were kept. He struck him repeatedly. When Mr Kawka said he did not know, he was struck in the face so hard that his eardrum was ruptured.

There were other members of the group inside the house. The two victims described everybody as carrying a weapon of some sort – a crowbar, a machete or something similar.

After the initial interrogation, the house was ransacked by the intruders, although neither of the victims was able to say precisely how many other men there were. Mr Kawka thought that there were five or six besides the second male who had stayed behind in the living room with him and Mr Brailsford, presumably to keep guard. That man asked for the keys to Mr Kawka's Porsche. He told Mr Kawka and Mr Brailsford not to move or they were dead. They stayed lying on the floor until after they heard the men drive away. The Porsche was not stolen, but there had clearly been an attempt to take it.

Afterwards, it was established that the intruders had ransacked not only the house but a static caravan in the grounds, which was the home of another man. Fortunately, he was away at the time.

The Ford Focus had been hired by a friend of a man called Ras Thomas and lent to Thomas. On the day of the Taunton burglary, Thomas had left his phone in Bristol. The prosecution case was that this was a deliberate act to prevent his movements from being traced. Later that day, the Ford Focus was spotted by a police officer stationary on the opposite side of the A38. Two black men, Thomas and the appellant, were standing beside it. Their heights, as agreed at trial, were respectively five feet eleven inches and five feet nine inches. The officer drove around the roundabout to where the vehicle was. He stopped and asked the men why they had stopped. The appellant said that the car had broken down because the clutch had given out. Thomas got into the driver's seat and tried to start the car, without success. At that point the officer told them both that there was a marker on the car as being involved in a burglary. Thomas then began to walk away along the A38, despite the officer asking him to come back. The appellant followed him, and then they each tried to make off into some undergrowth on the side of the road. They were pursued, detained and arrested.

Another police officer who arrived at the scene searched the car and the hedgerow at the side of the road. Among the items recovered from the car were two black balaclavas, a black, lightweight top and tracksuit bottoms, gloves, two black hooded tops, a pair of black trousers and a navy blue bucket hat. Three jewellery receipts were recovered after a further search of the car. One was identified by the man who lived in the static caravan as a receipt he kept in a safe within the caravan.

A machete, a black jacket and a pair of black and red work gloves were also recovered from the hedgerow. DNA tests linked a man named Thomas Hagans to the machete and the gloves recovered from the hedgerow. Hagans had hired the Ford Transit van which was used in the Taunton burglary and in an earlier burglary which took place in Cardiff.

Hagans was one of the offenders who were captured on CCTV inside the Cardiff property and on CCTV footage outside it. Thomas' DNA was found on gloves which were found on him on arrest, and the appellant's DNA was found on red gloves recovered from the Ford vehicle. An unknown person's DNA was found on gloves recovered from the passenger footwell.

Hagans, Thomas and the appellant were convicted after trial in the Crown Court at Newport before His Honour Judge Daniel Williams and a jury of two counts of aggravated burglary at the Taunton property (the house and the static caravan). Hagans was acquitted of the assault by beating of Mr Kawka and Mr Brailsford. Thomas and the appellant were convicted. Hagans pleaded guilty to the dwelling house burglary in Cardiff (count 1 on the indictment). The appellant was acquitted on that count. His defence was one of alibi. Thomas was convicted.

Two co-defendants, Charlie and Simon Seeney, pleaded guilty to the Cardiff burglary and to aggravated burglary at the Taunton premises. Simon Seeney also pleaded guilty to the two counts of assault by beating. He was the driver of the Ford Transit on the occasion of the Cardiff burglary. It is not known who the driver of the Ford Transit was on the date of the Taunton burglary.

The appellant appeals against his conviction on the aggravated burglary counts on the ground that the trial judge should have left the alternative of simple burglary to the jury. He was not invited to do so by trial counsel. However, counsel freshly instructed, Miss Ahluwalia, submits that it would have been open to the jury on the evidence to find that, although the appellant assisted and encouraged another or others to enter the main house, he did not know at that time that they were carrying a weapon or weapons. She invites the court to find that the convictions were unsafe and to use its powers under section 3 of the Criminal Appeal Act 1968 to substitute verdicts of simple burglary, and to re-sentence accordingly.

It is agreed between counsel for the Crown, Miss Jackson, and Miss Ahluwalia that the prominent considerations when evaluating whether alternative verdicts should be left to a jury are as stated in R v Coutts [2006] 1 WLR 2154 at [23], namely that there should be alternative verdicts obviously raised by the evidence and that the alternative should be a "realistic possibility": see R v Craig Frayne [2005] EWCA Crim 1713 at [14]. In its Respondent's Notice, the prosecution takes the position that on the evidence in the present case a finding that the appellant was guilty of simple burglary was neither a realistic possibility nor obviously raised by the evidence.

Miss Ahluwalia put the matter attractively and succinctly this morning in this way. In order to convict of an aggravated burglary, the jury would have to have been sure that the appellant knew at the time that the perpetrators entered the premises that they had weapons on them and were prepared to use them in the course of the burglary. Despite the fact that the appellant's defence was that he stayed in the car throughout and knew nothing of any offending, it was open to the jury to find that he got out of the car, and that he was party to an agreed course of action that there would be burglary and that potentially there would be assaults on anybody that the burglars encountered in the dwelling house; that is because of the possibility that he could be convicted (and indeed was convicted) of the assaults by beating.

However, Miss Ahluwalia submitted that it was an obvious possibility and not fanciful to suggest that the appellant did not know at the time that the other people were carrying weapons – machetes or the like. She rightly pointed out that the fact that a machete linked forensically with Hagans was found near the car at the time of the arrest of the appellant and Thomas pointed to some kind of connection between Hagans, the machete and that vehicle, and that it could have come from the vehicle, but even if that could show that there was an awareness by the appellant of a machete in the aftermath of the burglaries, that did not prove that it was known by him that a machete was carried at the time when they were being perpetrated.

The Crown's case at trial was that the aggravated burglaries were committed as part of a joint enterprise. On the evidence of the victims, all the men who entered the house were armed with machetes or crowbars. No complaint is or could be made of the trial judge's legal direction to the jury on joint enterprise.

The appellant exercised his right to silence in police interview. At trial he said that he did so on legal advice. His defence at trial was that he stayed in the car outside the property and knew nothing about any of the offending. When he gave evidence, the appellant admitted meeting Thomas, his cousin, in Bristol with another man called "Stretch". He said that they left Bristol because Stretch wanted to pick someone up. The appellant drove the car because Stretch had been drinking, and Stretch gave him directions as to where he was going to meet the other person. He parked up and Stretch got out and said that he would be back in a minute. Thomas remained behind with him in the car. They were parked up for about half an hour before Stretch came back with another man, a tall Somali, who got into the back of the car with a bag. By that time Thomas had swapped seats with the appellant and the appellant himself was in the back seat. Stretch was in the front. Thomas was becoming agitated because the appellant was a slow driver, and that was the explanation for the change of drivers. There were lots of items of clothing strewn over the back seat of the car. Stretch told Thomas to leave, and as they were on their way back to Bristol the car broke down. The appellant got out and helped to push. The others took items out of the car, but he did not see where they went. When the police officer came and the appellant saw Thomas walk away after the officer mentioned that the car had been involved in a burglary, he panicked and ran away for a short period. He did not want to be blamed for something he had not done.

The prosecution relied upon the fact that no phone was found on him. His explanation for that was that he must have dropped his phone in the hedgerow during his brief attempt to flee. However, no phone was recovered from the hedgerow.

Thomas' defence was consistent with that of the appellant’s account; he did not go to the house. Hagans, who pleaded guilty to the Cardiff burglary, claimed that he was in a different part of the country at the time of the Taunton burglaries. However, the jury disbelieved him because they convicted him of the two aggravated burglaries.

In our judgment, the fatal flaw in Miss Ahluwalia's argument, attractively though it was presented, is that if the jury were sure that the appellant did not remain in the car, but was part of the group carrying out the burglary, there was no evidence at all upon which the jury could have found that he remained outside the house. That was not his evidence, and it was not the evidence of the victims. They placed all the members of the group, armed to the teeth, inside the house. In the light of the evidence of the victims, it was hopeless to suggest that anybody who was inside the house was unaware that the others were armed, particularly since a machete was brandished openly by the first man in an attempt to get into the house whilst he was still outside with Mr Kawka. All the group were disguised with balaclavas, they were wearing dark clothes and they were all obviously presenting an extremely menacing picture to the victims.

As Miss Jackson pointed out, this is a case that is somewhat different on its facts from that of Craig Frayne. The appellant distanced himself from the burglaries. He admitted that he drove the car to the location, but alleged that it was Thomas, not him, who drove the car back, and so he was not adopting the position of simply being there as the getaway man, with no knowledge of what was going to go on in the house. It is also fanciful to suggest that if a machete or other weapon was brought in the car by any other occupant who participated in the burglary, the appellant would have been unaware of its existence. A Ford Focus is quite a small car and, despite the amount of clothing that was around, it is very difficult to see how he could have been unaware that there was a weapon.

Standing back and looking at the evidence, it seems to us that this is not a case in which simple burglary was an obvious alternative to have left to the jury. Of course, that was a matter for the judge. The fact that trial counsel does not ask for an alternative to be raised is not a complete answer. However, given that the test is one of obviousness, it is of some significance that no defence counsel at trial suggested that simple burglary was an option. The judge himself did not seem to think that it was an option. These things have to be evaluated, not in the light of hindsight, but on the basis of the evidence that was adduced at the trial at the time.

Standing back and looking at this matter in the round, the test set out in the authorities is not met in this case. We are satisfied that the convictions are safe. Accordingly, this appeal is dismissed.