R v Singh 2024

H lived at home with his wife and two children aged 11 and 9 years old. SA, wearing a uniform of a delivery driver, pretended to be delivering a parcel and as H went to pick it up, S kicked him in the head and forced his way into the house – quickly followed by 3 other men, all of whom were carrying knives. Knives were held to the throats of H’s wife and son, with threats made that they would be killed if valuables were not handed over.
H scuffled with one of the robbers and was stabbed in the head and three of the robbers fled, H and his son went upstairs and were confronted with the fourth robber who had armed himself with a gun that was lawfully owned by H (asserted by the prosecution to be L). Two shots were fired, causing serious injury to the arm and shoulder of H’s son.
S was accused of being involved in the organisation of the robbery. When interviewed by police under caution, S provided a prepared statement and did not respond to any of the questions asked. S stood trial with L who faced charges in relation to the shooting, having already pled guilty to the robbery itself.

At trial, evidence of telephone contact between S and the other accused parties, along with cell-site evidence, was used to demonstrate their association and an approximate location of the parties at the time of the robbery. S denied any involvement in organising the robbery, stating that he supplied drugs and his contact with the others related to that. S also admitted organising a taxi for an individual in the party (F) but explained that he had only done so as a favour and did not know anything about what happened. L gave evidence supporting this within which he stated that S had nothing to do with the robbery and any phone contact between L and S related to S supplying cannabis. It was L’s case that the robbery had been organised by G.

The judge directed the jury that the key consideration in the case was whether the jury could be sure that S had been involved in organising the robbery. The judge made clear to the jury that they did not necessarily need to think that S was the only individual involved in the organisation. S was ultimately convicted by the jury of robbery contrary to section 8 of the Theft Act 1968 and also, pleaded guilty to other offences of possession with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971, and possession of a bladed article, contrary to section 139 of the Criminal Justice Act 1988.

Grounds of Appeal were lodged by S. The grounds were originally rejected on application by a single judge. Fresh counsels were instructed by S, with renewed applications for leave and additional grounds of appeal submitted. Five final grounds of appeal were submitted by S:
  1. The jury shouldn’t have been allowed to draw an adverse inference in relation to S’ failure to mention his personal phone within his defence statement as he had not been asked at trial why he had failed to mention that and therefore, the jury should not have been permitted to draw any inference.
  2. The judge gave a confusing and inadequate direction under section 34 of the Criminal Justice and Public Order Act 1994.
  3. The judge had not adequately summarised the evidence of a particular defence witness, R.
  4. Cell site data demonstrating calls between L and G on the alleged date the group had carried out reconnaissance for the robbery had not been disclosed.
  5. Under ground 5 applications by S were made to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 in the form of a statement made by a convicted co-accused, exonerating S. In relation to this co-accused, an application was also made requiring solicitors to disclose notes and records of instructions received, having waived legal privilege.
Held

Application for extension of time to appeal dismissed. Conviction upheld. 

1. Within his evidence and defence statement, S provided explanations about using a drugs phone (phone number ending in 8547) but made no reference to having any other phone for personal use. Upon re-examination at trial, S referred to his personal phone for the first time (phone number ending in 3311).

During the original trial, the judge directed the jury that whilst S had been acting on the advice of his solicitors during interview in not answering questions, that did not prevent the jury from drawing inferences regarding any failure to mention facts.

Although the defence accepted that S had mentioned his personal phone (ending in 3311) during re-examination only they argued that, rather than the jury drawing inferences in the manner they did, the prosecution should have instead applied to re-open cross examination. To do so, would have allowed S to provide an explanation.

The Court of Appeal did not accept that argument, citing the fact that S had stated throughout the case that his personal phone was the one with the number ending in 8547 and made no reference to any other phone. Whilst giving evidence and in his defence statement, S had opportunity to put forward his case and he only mentioned the phone associated with number 3311 at the point it was no longer possible for the prosecution to obtain the billing records. As such, S had lost his opportunity to complain. Ground 1 dismissed.

2. The defence took issue with an oral direction issued by the judge, stating it was highly prejudicial and undermined written directions provided by the judge. The oral direction was as follows:

"In relation to the interview, a solicitor's advice is, of course, an important consideration but it is not something which a defendant can hide behind or use as an excuse to give himself time to think."
Additionally, it was argued that the judge had failed to refer back to S’ prepared statement submitted at interview, as that provided an explanation about failure to mention facts. Combining the issues with the oral direction, directions relating to a failure to mention facts in interview and within the defence statement, resulted in a confusing situation. The Court of Appeal concluded that the direction could have been phrased in a manner that was more helpful to the jury however, it covered all essential points and the jury also had agreed facts. The court of appeal were not convinced any unfairness had been caused. Ground 2 dismissed.

3. R was S’ girlfriend at the time of the robbery and the Court of Appeal accepted the fact that the judge had said little about that evidence however, the judge had summarised each account of evidence given. Ground 3 dismissed.

4. It was argued that the cell site evidence under Ground 4 only became known to S once it was advanced as part of G’s separate trial however, the respondent proved that the evidence had in fact been served in 2021. S amended his argument to acknowledge that the evidence was in fact disclosed however, it wasn’t usable, and it was illegible which is why it was unclear whether it had been disclosed or not.

The court of appeal criticised the argument, stating they were unable to understand the argument advanced by S regarding the evidence being illegible. The court pointed out that cell site evidence was often complex and difficult to understand however, had that been the case here, there had been opportunity to request clarification which was available but appeared to have been ignored. As such, the Court concluded it was too late for S to take issue. Had it been an important matter, the clarity would have been requested at trial. Ground 4 dismissed.

5. Under section 23 of the Criminal Appeal Act 1968, the court must consider reasons why any fresh evidence presented at appeal was not submitted during the original trial. Defence counsel at trial had chosen not to call the evidence exonerating S and that route could not be changed now. Ground 5 dismissed.