Otway v REGINA

Factual and Procedural Background

Just after 8.00 pm on Tuesday 22 August 2006, a blue Honda motor car arrived at Longlevens Road, The City, and stopped outside No 1. The driver and passenger exited the vehicle and approached the deceased, who was shot dead by the passenger. Both men fled the scene. Following a re-trial at The City Crown Court before Judge Gee QC and a jury on 16 June 2009, the Appellant was convicted of murder on the basis of being the driver in a joint enterprise with the gunman and sentenced to life imprisonment with a minimum term of 27 years.

Leave to appeal against conviction was granted by Keith J on two grounds concerning the judge's directions to the jury on joint enterprise. Additional grounds related to the admissibility of expert evidence and treatment of a witness were raised but some were abandoned before the appeal hearing. The grounds were considered in the following order: admissibility of expert evidence, directions on joint enterprise, and directions as to the facts.

The prosecution's circumstantial case involved evidence linking the Appellant to the blue Honda car seen at the scene and earlier locations. Witnesses described the car consistently with CCTV footage. The Appellant was seen with the car prior to the murder, and cell site evidence placed him near relevant locations at relevant times. The Appellant did not provide a defence statement or give evidence at trial.

Legal Issues Presented

1. Whether the trial judge was correct to admit the expert opinion evidence of Mr David Blake, a podiatrist, on gait analysis.
2. Whether the trial judge's directions to the jury on the issue of joint enterprise were appropriate.
3. Whether the trial judge's directions as to the facts, including treatment of witness evidence, were adequate.

Arguments of the Parties

Appellant's Arguments

• The trial judge erred in admitting the evidence of Mr David Blake, contending that gait analysis is not sufficiently recognised as a forensic science and that Mr Blake was not qualified as an expert in this field.
• There was no recognised statistical basis for the jury to assess the significance of the gait analysis evidence.
• The judge's directions on joint enterprise and withdrawal from it were incomplete or insufficient, particularly regarding the interpretation of the words "Don't smoke him" and the requirements for withdrawal from joint enterprise.
• The judge failed to adequately emphasize the relevance of certain evidence and inconsistencies in witness descriptions.

Respondent's Arguments

• The court should decline to hear the objection to Mr Blake’s evidence on admissibility grounds as no objection was taken at the re-trial, and the Appellant should not be allowed a second opportunity to challenge it.
• The evidence of Mr Blake was admissible because his expertise and the science of gait analysis met the legal requirements for expert evidence.
• The trial judge’s directions to the jury on joint enterprise, withdrawal, and witness evidence were proper and sufficiently clear.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the admissibility of Mr Blake's expert evidence on gait analysis. It noted that Mr Blake was a qualified podiatrist with 12 years of experience, including forensic gait analysis, and that no expert evidence challenged his qualifications or methodology. The court applied the legal principles from established case law, including the two conditions for admissibility: whether the subject matter requires expert assistance and whether the expertise is sufficiently recognised.

The court rejected the argument that gait analysis lacked scientific foundation or that the absence of a statistical database rendered the evidence inadmissible, citing relevant case law that permits expert opinion based on personal experience when statistical evaluation is unavailable.

The court also considered the expert evidence submitted by Professor Jamieson but found it irrelevant because he was not qualified in podiatry or biomechanics and misunderstood the applicable law regarding statistical evidence.

Regarding the joint enterprise issue, the court reviewed the witness evidence, including that of Michael Kelly and the anonymous witness "Sam Little," and found the trial judge’s directions to the jury clear and comprehensive. The judge properly explained the relevance of the words "Don't smoke him" to both the existence of joint enterprise and the possibility of withdrawal. The court found no error in the judge’s explanation of withdrawal from joint enterprise, noting that reasonable steps to prevent the crime are not a prerequisite for withdrawal.

The court dismissed complaints about the trial judge’s summing up, finding that the jury was adequately informed of the evidence and its relevance, including inconsistencies and witness reliability.

Holding and Implications

The appeal is DISMISSED.

The court upheld the conviction and sentence of the Appellant for murder. The ruling confirms the admissibility of expert podiatric gait analysis evidence where the expert is qualified and the methodology is sufficiently established, even in the absence of a statistical database. The judgment also affirms the proper approach to jury directions on joint enterprise and withdrawal, emphasizing the importance of clear explanation of relevant witness evidence. No new precedent was established beyond the application of existing legal principles to the facts of this case. The decision directly affects the parties by affirming the safety of the verdict and the appropriateness of the trial judge’s rulings.