R v Costen 2025
L was attacked by a group of people between approximately 10:50 pm and 11 pm. L sustained injuries, two deep wounds to his forehead, 10 centimetres in length, and associated fractures to his skull. The wounds were consistent with a heavy blow from a weapon, likely to have been a machete.
The prosecution case was that C and M, with others, took part in the vicious attack on L, in the course of which M had been riding pillion on an e-bike being ridden by C. CCTV evidence was central to its case -
- clips 2 and 4 - CCTV footage showed C and M at the snooker club, leaving 40 minutes before the incident - reflective stripes on C's trousers visible
- clip 6 - CCTV footage showed the e-bike and its rider before it entered the alleyway - reflective stripes on the trousers of the rider about the knee
- clip 10 - dashcam footage at a roundabout showed the e-bike chasing L - reflective stripes to the back of the rider's trousers and, when his right leg is lifted off the peg and extended, the stripe on that leg appears to be behind the right knee.
- clip 11 - doorbell camera close to M's address, shortly after the incident capturing two people on an e-bike - reflective stripes visible to the rear of the knees of the rider of the e-bike.
At the close of the prosecution case, the defence made an application of no case to answer. The Judge refused this. C did not give evidence. The defence case was that C was not the rider of the e-bike. It emphasised other features of identification evidence such as L's description in video recorded interview of the rider being a male with curly hair which did not match C. Also, L failed to pick out C in the identification procedure, despite having expressed a 90 per cent degree of confidence that he would be able to do so.
In his summing up to the jury, the judge stated -
"Ultimately, the prosecution case against C does rely upon you being sure that the trousers being worn by the rider of the e-bike are the same trousers being worn by C 40 minutes earlier and thereby sure that the rider of the e-bike is C. If you are not sure that similarities between the trousers C was wearing in the snooker club and the trousers worn by the rider of the e-bike are such that they must be the same trousers, and hence the same person, then you would not be sure about the identification of C as the rider, as the e-bike driver and you would have to find him not guilty of counts 1 and 2."
The jury found C guilty. He was acquitted of attempted murder (count 1) but convicted of an alternative count 2 of wounding with intent. M was convicted of attempted murder.
C appealed against conviction on the sole ground that there was insufficient evidence upon which a jury, properly directed, could identify C as being the rider of the e-bike involved in the incident, that the judge should therefore have withdrawn the case against C when invited to do so at the close of the prosecution case, and that as a result C’s conviction was unsafe.
Held
Appeal dismissed. Conviction upheld.
The judge was right to give the direction to the jury. Whether the footage was of sufficient quality, and if so, whether the jury were sure that the comparison meant that the trousers were the same and were worn by C, were questions of fact for them to decide. Accordingly the judge correctly left the case to the jury.
Having looked at the footage, this was of sufficient quality for a jury to have made a comparison and that jury could properly conclude from their own experience that the trousers were the same and the reflective stripes of that nature in that location were not an everyday feature of trousers commonly worn. The jury were entitled to reject, as unrealistic, a coincidence of two different persons wearing the same trousers which had that feature, particularly in the light of the association evidence between C and M, whom the jury could (and by their verdict did) conclude was the passenger on the e-bike with the machete.
View the full case document here, with links to related legislation and similar cases.
