Mullings & Anor, R v

At the no-case-to-answer stage, the prosecution evidence must be assessed as a whole. Weak identification evidence may properly be considered with independent circumstantial evidence capable of supporting it, including evidence of communications and movements before and after the offence.

Although each defendant’s case must be considered separately, admissible evidence capable of proving a co-defendant’s participation may provide material context for assessing the case against the others. A judge must leave the case to the jury where the combined evidence could support conviction. Fresh evidence that is peripheral and adds nothing material to an issue already explored at trial cannot affect the safety of the convictions.

Mullings and Morgan appealed, with leave, against their convictions for murder at the Central Criminal Court. They had been tried with Smallon, who was also convicted and sentenced to life imprisonment.

The prosecution alleged that Smallon, following an earlier confrontation with the deceased, arranged a joint attack. Its case against the appellants depended on limited identification evidence, mobile-telephone call and cell-site evidence, and evidence connecting Smallon and his car with the attack. The appellants contended that there was no case for either of them to answer. They also relied on proposed fresh evidence suggesting that others may have held a grudge against the deceased.

The central issue was whether the evidence at the close of the prosecution case was sufficient to be left to the jury.

1. The appeals were dismissed. The judge was right to reject the submissions of no case to answer and to leave the cases against Mullings and Morgan to the jury.
2. The identification evidence against each appellant would not, standing alone, have justified conviction. It had to be approached with considerable care because of the circumstances of the incident, the witness’s limitations and the qualified nature of the identifications.
3. That evidence did not stand alone. There was a strong case, admissible against both appellants, that Smallon had participated in the attack and transported the other assailants in his car. The evidence of his involvement was directly relevant context, although the case against each appellant still required separate consideration.
4. The jury could consider the pattern of calls between telephones attributed to the defendants, their movements towards the area of the killing shortly before it, and their subsequent presence in the same area after it. The evidence did not reveal the content of the calls and did not establish an exact location for every use of a telephone. Those were matters for the jury. In the overall context, the communications and movements were capable of supporting the accuracy of the identifications and establishing a case to answer.
5. The proposed fresh evidence about possible enemies of the deceased was vague and peripheral. Even if admitted under Criminal Appeal Act section 23, it would have taken the defence no further because the jury already had evidence that the deceased may have had several enemies.
6. The unpressed matters raised for Morgan, including the suggested application of the lurking-doubt principle, did not provide a proper basis to disturb the jury’s verdicts.

• Court of Appeal (Criminal Division): dismissed Mullings’s and Morgan’s appeals against conviction.
• Central Criminal Court: on 13 August 2002, Judge Goddard and a jury convicted Mullings, Morgan and Smallon of murder. Each was sentenced to life imprisonment.