No: 9802505/X2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sitting at Manchester Crown Court
Crown Square
Manchester M3 3FL

Tuesday 16th February 1999


B E F O R E :


THE VICE PRESIDENT
(LORD JUSTICE ROSE)


MR JUSTICE SMITH


and


MR JUSTICE KLEVAN

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R E G I N A

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KEVIN SAMUEL COLE

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR R HENRIQUES and MR McDERMOTT appeared on behalf of the Applicant

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JUDGMENT
(As Approved by the Court)
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Crown Copyright

Tuesday 16th February 1999
THE VICE PRESIDENT: On 21st March 1998, at Preston Crown Court, following a trial before Douglas Brown J, this applicant was convicted of the murder of a man called Dookie, and of wounding a man called Handyside, with intent to do grievous bodily harm. He was sentenced to life imprisonment and 10 years concurrently for the latter offence.
He renews his application for leave to appeal against conviction, following refusal by the Single Judge.
There were two co-accused, one called Kirk, and the other called Mellor, who were convicted of the same two offences and of a third offence of aggravated burglary. There were four other co-accused, one called Basanko, one called Stuart Fowler, one called John Fowler and one called Kristianson, who were convicted of offences other than those of which the applicant was convicted.
The deceased, Dookie, and the victim of count 2, Handyside, were drug dealers in the Meadow Street area of Preston. The co-accused, Kirk and Mellor, were similarly engaged in another area of Preston. But they began to encroach on the territory of Dookie and Handyside. The applicant, Cole, was a long-standing associate of Kirk and Mellor.
There were, at about the beginning of 1997, a series of meetings and attempted meetings between the two competing drug-running organisations. By way of example, on 9th February 1997, when Handyside and Dookie were at an address in Preston, Kirk, Mellor, and the two Fowler co-accused, suddenly arrived through the back door, armed with knives and a hammer. Handyside ran up the stairs and armed himself with one of the bannister spindles. Allen, Osbourne and Dookie, on that occasion, all received multiple knife wounds. An ambulance was sent for, but the police were not, and no charges were preferred.
In the early hours of 14th February, there was an incident which gave rise to the aggravated burglary conviction. That involved Dookie and Handyside in a car and Kirk, who was on foot at the time. There was, later that day, a conflict in the street, which involved Kirk, Mellor, Handyside and Dookie and about eight or 10 others.
They converged not far from a public house called the Variety. Handyside was hit on the head with a baseball bat. He fell down. Two men kicked him violently, and he was then chased to the public house. A man who chased him and who said "you scum bag" was subsequently described as having an Irish accent rather than a local accent, but a woman called Linda Ellis, to whom we shall later return, said that the man had shouted "get him" and "bastard". He had, she said, a local accent, which was to say not from Glasgow or the East End of London or a strong Scouse accent, but just local. She was within a few inches of the man who had shouted the words which we have stated. Three days later, at an identification parade, she picked out the applicant, Cole, as being that man.
Dookie, meanwhile, who was wearing an orange jacket, was knifed several times in the chest and abdomen and he sustained injuries from which, a couple of days later, he died. The knife had fibres from Dookie's jacket on it, when it was recovered, and it had fibres from Kirk's gloves, which he was wearing on this occasion, embedded in the handle. A baseball bat was found in the street, which contained other fragments of material from Dookie's clothing.
The various accused were interviewed. The applicant said that he had no connection with Preston. He knew Kirk vaguely, but he did not know Handyside or Dookie. He denied, at first, having been in Preston at the time of these violent events and, indeed, said that he was in Liverpool for the whole of the day in question. Later, he was to say that he had been in Preston, at the relevant time. He had met Kirk and others. Suddenly there had been a fight. He had left the scene and driven straight back to Liverpool.
He accepted that still photographs taken from a video, in a shop, not far from the scene of the fatal events, half-an-hour or so before the violence to which we have referred, did include him within them, but he said he could not remember what he was doing in that shop.
A submission that there was no case to answer against the applicant was made at the close of the prosecution case. It was rejected by the trial judge. The applicant, thereafter, did not give any evidence, or call any evidence; nor did the Fowler brothers. Kirk, Mellor and Bosanko give evidence.
On behalf of the applicant, Mr Henriques QC, who represented him at trial, advances one ground in relation to which he seeks leave to appeal. That is that the judge was wrong to reject the submission of no case to answer, at the close of the prosecution case. That submission is based on the contention that the evidence of Mrs Ellis was so unreliable that it should not have been left for the jury's consideration.
The start of that submission, inevitably, was the judgment of the Court in R v Turnbull, which, of course, emphasised the dangers in relation to identification, particularly, in what had been referred to as 'fleeting glance' cases and also in cases where there is a longer period of observation in difficult conditions. In such cases, it is, as the judgment in that case makes plain, appropriate for the case to be withdrawn from the jury's consideration, unless there is other evidence tending to support the identification. Mr Henriques accepts that, in the lies told about his whereabouts on the relevant day, there was material, in relation to this applicant, which was capable of confirming the identification. He also accepts that it was open to the jury, if it were right for the matter to be left for their consideration, for them to draw inferences adverse to the applicant from his failure to give evidence. But, submitted Mr Henriques, the necessary prerequisite for the case to be left for the jury's consideration was that there should be, at any rate, prima facie reliable evidence emanating from Mrs Ellis.
The criticisms which Mr Henriques made of her evidence were these. First, he referred to the description which she had given, at the outset, to the police. She had described the man in a statement made three days after the event on 17th February, as being white[J1] , 5 feet 10" to 5 feet 11" tall, and as having very light brown or mousey coloured hair, cropped, very short, almost shaven, through which the scalp could be seen. The description, which also referred to the fact that Mrs Ellis had a good close-up view of the man whom she was describing, extended to the jumper which he was wearing which, she said, had horizontal stripes, about 2 inches wide, and in two colours, mauve and an orangey tan, equally spaced and the colours appearing to have a washed out effect.
Mr Henriques, in comparing that description with the applicant, is critical of it in a number of respects. First of all, it was common ground, at the trial, that the applicant is 6 feet 3 inches tall, and not as the description of the man asserted, 5 feet 10 inches to 5 feet 11 inches. It is to be noted that the witness, Mrs Ellis, as emerged in cross-examination was, herself, 5 feet 8 inches tall. She described the man as being taller than she was and added that she could not say inch for inch.
Mr Henriques draws attention, in relation to the appearance of the jumper which Mrs Ellis had described, to the still photograph taken from the video in Heals Shop. That shows, it is common ground, the co-accused, Kirk, on the left, showing a right profile, and the applicant, Cole, facing the camera, with his head turned slightly to the left. In that photograph, Cole is wearing, visible to the camera, not a striped jumper of any kind, but a dark blue plain garment with a white motif on the chest. That photograph, as we have said, was taken about a little under half-an-hour before the fatal stabbing.
Mr Henriques draws attention to the similar cropped hairstyles worn by both Cole and Kirk in the photograph. The essence of his submission is that Mrs Ellis mixed up the applicant with Kirk. At the heart of that submission is Mr Henriques' reliance upon the description given by Mrs Ellis of the jumper worn by the man whom she identified, compared with that which Cole is wearing in the photograph.
That submission is based upon the production to this Court, as it was before the jury, of a garment which admittedly belonged to Kirk. It is a garment which is undoubtedly horizontally striped. The stripes are not equally spaced. There are bluish/mauvish stripes, and there are black stripes, which are at least twice as deep as the bluish/mauvish stripes. Between the black and bluish/mauves stripes, there are dispersed narrow orangey-red stripes. There is also, on the front of that garment, the word, in red, "Reebok".
Mr Henriques stresses that comparing this garment of Kirk, with the description given at the outset by Mrs Ellis, there are the following points of similarity: it is a sweat shirt style; it has a crew neck; it has horizontal stripes. It is submitted, as we have said, that Mrs Ellis got her identification wrong, by mistaking Kirk for Cole, in the light of her confusion about the garment.
It is to be noted that, as Mr Henriques said, it was Kirk's counsel who first cross-examined Mrs Ellis and, by questions of a non leading character, asked whether the man whom effectively she had identified as Cole was wearing this garment of Kirk. It is to be noted that she said that he was not. This, she said, was not the T-shirt. It was the wrong colour and had
a "Reebok" label which the shirt she saw did not.
Kirk, it is to be said, gave evidence that he was wearing this jumper at the relevant time, and that it was he who had pursued Handyside into the public house.
Mr Henriques is critical of the evidence of Mrs Ellis in relation to the accent, because it became common ground, in the course of the trial, in relation to Cole, albeit he did not give evidence, that he had a Liverpool accent. The further criticism is made that Mrs Ellis' identification, at the identification parade, was of an unreliable nature. There are two aspects to this. First, it is common ground that during the parade, which was held with the men on the parade sitting down, Mrs Ellis asked for No 9 to stand up. There was no evidence as to where in relation to the parade she was when she made that request. Mr Henriques submits that that request, in relation to No 9, casts some doubt upon her ultimate identification of No 6, which was where the applicant was positioned at the time.
The difficulty with that submission is the evidence which she gave, as appears from the summing-up at page 40E, in relation to enquiring whether No 9 could stand:
"She told you that she was not seriously contemplating identifying No 9. She said she wanted some assistance from the height."

The second ground of complaint in relation to the identification is that, at the moment of identification, Mrs Ellis said: "I can identify according to what my memory is doing". Mr Henriques accepts that, at first blush, that might be the sort of thing which would be in the mind of any identifying witness. But he invites the Court to construe those words in such a way as to conclude that they indicate some form of qualification upon her evidence. The difficulty with that, as appears from the top of page 41 of the summing-up, is that, when she was asked about the use of those words and how sure she was, she said: "I have no doubt about my choice at the time. I do not think I am wrong." She went on to say that the striped T-shirt was a secondary aspect of her identification, the first aspect was the features of the man whom she had picked out.
In those circumstances, it seems to us that, despite Mr Henriques attractive submissions to this Court, the learned judge was not only not wrong, but was entirely right to leave this matter for the consideration of the jury. The reliability, or otherwise, of the identification of Mrs Ellis made, as it was, on the basis of being within a few inches of the man whom she very soon after identified, was preeminently a matter for the jury. Bearing in mind also the other matters to which we have referred in relation to lies and the failure of the defendant to give evidence, we unhesitatingly conclude that it is not arguable that this applicant's conviction was unsafe. Accordingly this renewed application is refused.

MR HENRIQUES: Your Lordship will have regard, of course, to the fact that we are not legally aided here today. Would your Lordship care to consider whether or not, having regard to the gravity of this matter, that an oral hearing was, in many respects, inevitable, and that it was desirable that the matter should have been prepared and presented by counsel and solicitor? It is a matter entirely for the Court.

THE VICE PRESIDENT: Before we rule on that, what role did the solicitor play?

MR HENRIQUES: He obtained transcripts of the principal witnesses, particularly the transcript that I have referred you to, of Mrs Ellis, also of Mr Handyside. He considered a number of authorities and reports corresponded. I do not apprehend it would be a vast amount of time of public expense, but he remained interested and active, within the confines of the case.

THE VICE PRESIDENT: Have you had a junior assisting in relation to this?

MR HENRIQUES: Who was present throughout the trial, Mr McDermott.

THE VICE PRESIDENT: It would be fairly unusual, Mr Henriques, but that is not fatal. We will consider it. (Pause)

In the exceptional circumstances of this case, we shall grant legal aid for two counsel and for the solicitors. That is not to be regarded as a precedent for any other case. That is for the preparation for today and for today.