R v Owen McGowan & Ors.
[2023] EWCA Crim 247
Roshane Watson & Ors v R
8 August 2023
[2023] EWCA Crim 960
Court of Appeal
Four people were involved in a murder. One appealed his conviction, but the court said there was enough evidence against him. Two others appealed their sentences; the court thought the punishments were fair. The last person didn't have an appeal that the court thought was good enough.
Key Facts
- •On July 29, 2020, Christopher George (CG) was shot and killed.
- •Roshane Watson (RW), Gizem Ozbahadir (GO), Leo Donaldson (LD), and Terrique Tomlin (TT) were charged in connection with the murder.
- •RW was convicted of murder, possession of a firearm with intent to endanger life, and perverting the course of justice.
- •GO was convicted of murder and three offences of fraud by false representation, acquitted of firearm possession.
- •LD was convicted of manslaughter and four offences of fraud by false representation, acquitted of firearm possession, and pleaded guilty to perverting the course of justice.
- •TT was convicted of manslaughter and acquitted of firearm possession.
- •The prosecution's case relied on CCTV, phone data, and circumstantial evidence.
- •RW did not give evidence. GO and LD gave evidence, while TT did not.
- •The prosecution's closing speech commented on the defendants' failure to call witnesses.
Legal Principles
A judge may comment on the defence's failure to call a witness, but must exercise care and ensure fairness.
Gallagher [1974] 1 WLR 1204, Shakeel Khan [2001] EWCA Crim 486
There is no absolute prohibition on judicial or prosecutorial comment on absent defence witnesses; the court must consider the specific facts of each case.
Wheeler [1967] 1 WLR 1531, Wright (1999 unreported), Yousefi [2020] EWCA Crim 791, Martinez-Tobon [1994] 1 WLR 392, Cowan 1995 QB 373
Sentencing for murder involving a firearm has a 30-year starting point under the Sentencing Act 2020, Schedule 21, paragraph 3(1)(b).
Sentencing Act 2020, Schedule 21, paragraph 3(1)(b)
The Court of Appeal Criminal Division does not apply stare decisis with the same rigidity as in civil cases.
Simpson [2003] EWCA Crim 1499, R v Gould [1968] 2 QB 65
Outcomes
RW's appeal against conviction dismissed.
The circumstantial evidence was strong, and the prosecution's comments on RW's failure to call witnesses, while containing some improper elements, did not cause incurable prejudice.
GO's renewed application for permission to appeal against conviction dismissed.
The jury's verdict was not inconsistent, and the jury management issues did not undermine the safety of the verdicts.
GO's appeal against sentence dismissed.
The correct starting point for sentencing was 30 years, given the use of a firearm; the sentence was not manifestly excessive.
LD's appeal against sentence dismissed.
The judge correctly categorized the manslaughter as Category B, and the aggravating factors justified the sentence.