Labastide & Anor, R v

Evidence relied on to advance a defence theory must be admissible, relevant and probative. A tactical difficulty in calling a witness cannot justify inviting a jury to speculate from material that does not support the proposed inference.

An identification case should be withdrawn only where the evidence is too tenuous to leave safely to the jury. Recognition based on meaningful prior acquaintance, despite evidential weaknesses, may be fit for jury assessment. Two identifying witnesses may provide mutual support if the jury is first sure that each witness is truthful and reliable. Differences in their accounts do not prevent mutual support where the events form a short, continuous joint enterprise.

The appellants were convicted of murder at the Central Criminal Court on 12 December 2006. Labastide had previously faced a trial at which the jury failed to reach a verdict against him. Carty was later charged with the same murder.

The prosecution alleged a joint enterprise by members of the Mus Luv Crew. The principal evidence against the appellants was identification evidence from Tyrone Subaran and Sabrina Blackburn. There was no forensic evidence directly linking either appellant to the shooting.

Labastide challenged the exclusion of evidence concerning a convicted co-defendant’s later-observed head injury and bloodstained jeans. Carty challenged the refusal of a submission of no case to answer and the direction that the two witnesses’ identification evidence could be mutually supportive.

Appeals dismissed. The convictions were safe.

1. The judge correctly excluded the proposed evidence about Shane Taylor’s head injury and bloodstained jeans. There was no evidence from which a jury could infer that the injury, first observed more than three weeks after the murder, had been caused during the incident, by a bullet, or by a firearm held by either Subaran brother. The proposed inference was therefore speculative and potentially misleading. The defence’s tactical difficulty in calling Taylor could not make the unsupported theory admissible.
2. The judge was entitled to reject Carty’s submission of no case to answer. The weaknesses in Tyrone Subaran’s identification, including the delay and the absence of an early description, were matters for the jury. His evidence was properly characterised as recognition because he had encountered Carty several times for meaningful periods before the murder. It was not a fleeting-glance case, and the lighting was sufficient. Sabrina Blackburn’s evidence was also capable of belief despite the attacks on her credibility and her account that Carty was not involved in the initial shooting.
3. The direction on mutual support was careful and appropriate. The jury were told to consider weaknesses and inconsistencies before using either witness to support the other, and only after they were sure that the supporting witness was truthful and reliable. The two scenes formed parts of a short continuum involving overlapping members of the same alleged joint enterprise. Any understatement in describing the interval as seconds did not undermine the direction.

The identification evidence was properly admitted and left to the jury, who received proper directions on its assessment.

• Court of Appeal (Criminal Division) Dismissed both appeals against conviction and upheld the convictions as safe: [2008] EWCA Crim 2564.
• Central Criminal Court Convicted both appellants of murder on 12 December 2006. Labastide was retried after the jury at his earlier trial had failed to agree a verdict against him.