Roshane Watson & Ors v R

There is no absolute prohibition on judicial or prosecutorial comment on a defendant’s failure to call a potential defence witness. The trial judge retains a fact-sensitive discretion, must preserve the prosecution’s burden of proof, and should avoid inviting speculation or treating the omission as proof of guilt. Counsel are subject to the same constraints as the judge. A non-shooter’s acquittal of possessing a firearm does not necessarily make a murder conviction inconsistent, because possession is not a necessary element of murder. For sentencing, the 30-year starting point under Sentencing Act 2020 Schedule 21 may apply to a joint participant in a murder involving a firearm, even if that participant did not possess the firearm.

These conjoined matters arose from a lengthy trial at Wood Green Crown Court. Roshane Watson was convicted of murder, possessing a firearm with intent to endanger life and perverting the course of justice. Gizem Ozbahadir was convicted of murder and fraud offences, and Leo Donaldson was convicted of manslaughter after pleading guilty to related offences.

Watson appealed against conviction. Ozbahadir renewed her application for permission to appeal against conviction and appealed against sentence. Donaldson sought an extension of time and permission to appeal against sentence. The appeals raised issues concerning prosecution comments on absent defence witnesses, the consistency of Ozbahadir’s verdicts, jury management, and the correct sentencing starting points.

Disposition. Watson’s appeal against conviction was dismissed. Ozbahadir’s renewed application for permission to appeal against conviction was refused and her sentence appeal was dismissed. Time was extended for Donaldson to apply for permission to appeal, but the application and prospective sentence appeal were dismissed.

1. Comment on absent witnesses. The court rejected the proposed absolute prohibition. It reviewed Wheeler [1967] 1 WLR 1531, Gallagher [1974] 1 WLR 1204, Wright 1999 unreported, Yousefi (Parviz) [2020] EWCA Crim 791 and Shakeel Khan [2001] EWCA Crim 486. The governing approach is fact-sensitive. No universal formula should fetter the trial judge’s discretion.
2. Limits on comment. It is permissible to identify that no evidence has been called to undermine or contradict the prosecution case. It is impermissible to invite the jury to hold the failure to call witnesses against the defendant. A careful middle course may be appropriate. The same constraints apply to prosecuting counsel, whose comments must not undermine the judge’s directions. Assertions that absent witnesses were able to attend court require an evidential foundation and may require immediate judicial correction.
3. Watson. Most of the prosecution comments were permissible statements of fact and did not transfer the burden of proof. The comments about witnesses’ ability to attend court lacked an evidential foundation, but the prosecutor’s clarification, together with the judge’s repeated directions, cured the prejudice. The circumstantial case called for an answer and the conviction was safe.
4. Ozbahadir. The verdicts were not inconsistent. Possession of the firearm with intent to endanger life was not a necessary element of murder. The jury was entitled to distinguish the evidence against each defendant and to infer participation in the murder from Ozbahadir’s conduct, despite acquitting her on the firearms count. The judge also made no error in permitting the jury to continue deliberating or in giving a Watson direction.
5. Sentencing. The correct starting point for Ozbahadir was 30 years under Sentencing Act 2020 Schedule 21 paragraph 3. That provision applied to a murder involving a firearm and could apply to a joint participant who had not possessed the firearm. The judge was entitled to reduce the starting point to reflect Ozbahadir’s role. Donaldson’s manslaughter fell within Category B. Knowledge that a gun had been used and the deliberate dismantling of the vehicle justified the top of the range, subject to avoiding double counting and applying totality.

• Court of Appeal (Criminal Division): Dismissed Watson’s conviction appeal; refused Ozbahadir’s renewed application for permission to appeal against conviction; dismissed her sentence appeal; extended time for Donaldson but dismissed his application for permission to appeal.
• Wood Green Crown Court: Convicted and sentenced the appellants as described in the judgment. No separate citation for the Crown Court proceedings was stated.