R v Mahmoud Hussein Mattan (Hanged) UK 1998

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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24th February 1998 - Court of Appeal

The Vice President

In July 1952 Mr Mattan  was convicted of murder and sentenced to death. In August the Court of Criminal Appeal refused his application for leave to appeal. On 8th September he was hanged in Cardiff Prison. He now appeals against conviction.

The deceased was a woman called Lily Volpert who kept a shop near Cardiff docks. It seems that she was robbed, about £100 was stolen and she was found with her throat cut from side to side from behind.

The key witness for the prosecution was a man called Harold Cover. He said he saw Mr Mattan coming from the doorway of the shop at 8.15pm which was the time when the murder must have been committed.

Mrs Gray, another shopkeeper, said that Mr Mattan came into her shop with a large sum of money which she estimated at between £80 and £100, within three-quarters of an hour or so after the likely time of the murder. She said he was dressed in a hat and coat and white trousers and carrying an umbrella.

A pair of shoes recovered from Mr Mattan were found to have on them a substantial number of tiny specks of human blood invisible to the naked eye. As the shoes were second-hand, and had only been in the appellant's possession for a week or two, at the most, that evidence was at best of doubtful value.

There was evidence from 4 witnesses that Mr Mattan carried a knife or razor on a number of occasions over a period of weeks or months prior to the murder. The trial judge clearly thought little of that evidence - he described it as not taking the case very far. There was also some inconclusive evidence about the appellant, a day or two after the murder, gambling on dogs and cards.

At the trial, the defence was alibi. Mr Mattan said that he had not been in the shop, or indeed, in that street on the day of the murder. He said he had left a cinema at 7.30pm and went home. He was clearly an unimpressive witness. He gave evidence which contradicted a good deal of the prosecution case, on major, minor and wholly collateral issues.

The police said there was a great deal of blood on the floor of the shop and blood splashes on garments displayed for sale. No fingerprints were found in the premises. There were smears of blood in several places suggesting that the assailant had worn gloves. There was no blood found on the appellant's wallet in which Mrs Gray said she had seen the large roll of notes. When, on the evening of the murder, the appellant was visited by police officers and his room searched, he had no money of significance in his possession. There was certainly no roll of money in his wallet. He had a dark overcoat, umbrella and shoes, found by the police, which were all damp. He also possessed a hat, described as a trilby.

The prosecution case was that certain pieces of evidence point conclusively to the fact that Mr Mattan committed this offence.

1. He was seen at a quarter-past 8 leaving the entrance to this shop. Although out of work (as a labourer) shortly after the murder he was seen in a shop with a large sum of money.

2. £100 and probably more, was taken from the shop where the murder was committed.  

If so, then Mr Mattan must be guilty.

Then there is the pair of shoes found to have upon them specks of human blood. The inference is that those shoes were worn by Mr Mattan that night. That evidence is consistent with his guilt. He was seen by the Police within an hour or two of the murder being committed. He was asked to give an account of his movements. Virtually none of the things he said that night was true. That must indicate guilt.

There were three grounds to his appeal.

1. Obviously the jury believed both Mr Cover and Mrs Gray. But Gray’s evidence was so flawed that it should not have been believed.

2. It was claimed the judge misdirected the jury on 5 matters of no present significance.

3. The judge was wrong to admit evidence of 4 witnesses who said they had seen Mattan with a knife. Mattan’s mother-in-law was to be called to speak of her conversations with Mrs Gray and which cast doubt upon Gray's truthfulness.

The appeal was refused. It said that even if the jury did not believe Mrs Gray, they could have convicted if they accepted the evidence of Mr Cover, which, together with the evidence of blood staining to the appellant's shoes, would have been sufficient on its own. The Court described the summing-up as “a model”. One judge said, Mrs Volpert died at 8.20pm and:

"At that very hour from that house the prisoner, according to the evidence of a man named Cover, who knew him by sight, emerged and walked into the street."

Plainly the conviction depended upon the reliability of Cover's identification of Mattan as coming out of the shop doorway at 8.15pm He did not attend an identification parade; he made a dock identification of the appellant, both at the Magistrates' Court and at the trial before the jury.

In May 1969 (17 years later) Cover, was convicted of the attempted murder of his daughter, by cutting her throat with a razor. He was sentenced to life imprisonment. Mattan’s case was referred to the Home Secretary. Cover's conviction suggested that he might himself have murdered Miss Volpert. In 1970, the Home Secretary wrote to the family, saying he saw no reason to re-open the case.

In 1996, Mr Mattan’s family made further representations and the case was transferred to the CCRC in April 1997. The Commission concluded that there was sufficient evidence to call into question the safety of the conviction, and accordingly referred the matter to this Court.

Unknown to the defence was that:

1. The statement made by Mr Cover on the day after the murder, differed materially from his evidence before the jury.
2. Cover had received a reward for his part in the appellant's conviction.
3. The 4 witnesses who had seen a man near the shop around the time of the murder, had failed to pick out Mattan on an identification parade.

Mrs O'Sullivan (aged 12 at the time) said he was not the man she had seen near the shop at the time – but her statement, made on the day after the murder, was not disclosed to the defence. A further statement made on 13th March 1952 (not disclosed to the defence) supported Mattan’s account of leaving the cinema at 7.30 p.m.

After the referral by the Commission, there were further developments which took place up to and including this morning.

Griffith-Williams QC, for the Crown, indicated some weeks ago, that the prosecution no longer relied on the evidence of Mrs Gray as credible. The trial judge had referred to her evidence as "very vital". Griffith-Williams, in his written submissions to this Court, accepted that Cover's evidence was crucial to the conviction and that if he was not credible, it would be impossible to seek to sustain the conviction.

On 7th March Cover said in his statement:

"...during the evening I was at the John Cory's Hall, Bute Street... I am practically certain that it was 7.55 p.m. when I left the Hall. I walked slowly along Bute Street towards the Police Station. I was on the shops' side of Bute Street... I saw two Somalis. One was standing against the glass window close to the doorway of Volpert's shop. The other was coming out of the shop doorway... He passed right in front of me, causing me to move aside to let him pass. He turned to his right and went in the direction from which I had come. The other Somali remained by the window..."

"The Somali I saw leaving the shop I know well by sight. I have seen him in the Colonial Annex Dance."

"I have seen him near a Somali Lodging House in Bute Street. I have also seen him walking in various parts of the Docks. The man I saw coming out of the shop I would describe him as 5' 10" in height, slight build, thin face. I am not sure if he has scars on his face. I think he has a gold tooth in his mouth. I'm not certain. He was not wearing a hat. He was not wearing any coat. Overcoat I mean... He was between 30 and 40 years."

"The man standing by the glass window I would describe as between 25 and 30 years. Height, 6 feet, or a little more. Very young features, pleasant. He was wearing a gabardine mac, light colour [and] trilby hat... I've also seen this man around the dock's district once or twice."

"I would certainly know the man coming out of the shop  if I saw him again. I think I would know the man standing by the window."

Mr Mattan did not have a gold tooth. At the committal proceedings Cover's evidence was:

"On 6th March, 1952, in the evening, I passed the doorway of Volpert's shop in Bute Street ... I passed the doorway of the shop and there was somebody standing up against the window. I cannot see that person here today... As I was passing, Mr Mattan came from the direction of the doorway of the shop. I had seen him on a few occasions before in 'Butetown'."

In his evidence before the jury he said:

"Q. When you passed... Miss Volpert's shop, did you see anybody outside or near Miss Volpert's shop?
A. Actually I seen somebody, but it was not until after I passed Miss Volpert shop I seen him. It was on the approach of Miss Volpert shop and the Maltese I see the accused gentleman over there.
I see him coming from the direction of Miss Volpert's shop.
I mean the entrance of the shop."

Later:

Q. Do you mean in the porch?
A. Yes.
Q. You'd left the John Cory Rest at about 5 minutes past 8, I think you stated?
A. Yes, it would be about five past 8.
Q. About what time would it be you were passing Miss Volpert's shop?
A. I was going just an ordinary slow walk, and I was talking to a couple of people on my way up. I should think it was a matter of 10 minutes before I got there.
Q. You think about 8.15?
A. Yes, about 8.15. I doubt if it was any later than that.
There was another man standing outside Volpert's shop.
I think he is... the nationality of the accused.
... He was standing at the opposite window. (Indicating)
... pointing to the window of No. 204 in [the] photograph...

The defence did not have a copy of, nor were they aware of, the terms of Cover's statement of 7th March.

On 10th March 1952, a Somali called Taher Gass was interviewed by the police. That interview was disclosed for the purposes of this appeal, but not to the defence at the time of Mattan’s trial. He said he was in Miss Volpert's shop at 4.30 on the afternoon of the murder. He lived at 196 Bute Street. Three times during the evening of 6th March, he said, he had passed the shop. First, at a little after 7.30pm, going to the Arab house in Sophia Street. Secondly, between 8.10 and 8. 15, returning to 196, when he said everything was quiet outside the shop. Thirdly, later, when there was a crowd of people and police outside the shop.

Two weeks ago, the prosecution furnished the defence with legible copies of entries made in a note book of some description, albeit not an official police officer's notebook, by Detective Inspector Roberts. He was a senior officer, assisting in the Volpert enquiry, though he was not a witness in the case. He is now dead. The prosecution believe that he made his notes at about the time of the committal proceedings. The existence of the entries was known to those representing Mr Mattan some time ago, but parts were illegible in the copies which they had and the reference those notes contained to Gass was not apparent. Once a legible version was available, two entries became of great significance on this appeal. Detective Inspector Roberts had recorded:

"The man seen by Cover was traced - Gass (Taher) and
useless? Cover left Cory's Rest, 7.50 p.m., identifies the Somali in the porch as Gass."

It is to be noted that in no written statement did Cover name either of the Somalis he says he saw. Gass, it emerged last week, was tried for the murder in June 1954 of a man by stabbing. In October 1954 he was found not guilty by reason of insanity, and sentenced accordingly. He may no longer still be alive. There was disclosed to the defence last night, and to the Court this morning, a copy of a telex circulated in June 1954, which contained a description of Taher Gass, as wanted for that murder. It is in the following terms:

A SEAMAN BORN IN BRITISH SOMALILAND 1920. 5FT. 7INS. SLIM BUILD. BLACK HAIR. BROWN EYES. DARK COMPLEXION. A MAN OF COLOUR. GOLD TOOTH LEFT UPPER JAW... HAS BEEN CONVICTED OF VIOLENCE.

In the light of that material, at the outset of the proceedings before this Court today, Mr. Griffith-Williams very properly accepted that, although arrangements had been made for Cover, who is still alive, to be tendered to this Court as a witness, if the Court wished to hear him, he, Mr. Griffith-Williams, could not invite the Court to regard Cover's identification of the appellant as credible. Mr. Mansfield QC, for Mr Mattan, submitted that plainly Cover's identification evidence should now be regarded as incredible, and accordingly the appellant's conviction regarded as unsafe.

We accept Mr. Mansfield's submission. The Court did not find it appropriate or necessary to hear evidence from Cover. Neither side suggested his evidence was capable of belief and, leaving every other consideration aside, after 46 years, it seemed unlikely that he could assist the Court.

It was unnecessary for the purposes of this appeal to investigate why material which we regard as crucial was not before the jury which tried Mr Mattan. For better or worse, and this case shows for worse, it was not the practice, in 1952, for prosecution witness statements to be shown to the defence. At trial, the defence had the depositions made by witnesses before the committing justices. But unless, for some reason, witness statements were subsequently, for example, renewed by way of notice of additional evidence, their terms were generally unknown to the defence.

In addressing the question of whether this jury's verdict should be regarded as unsafe we list the matters of which they were unaware.

First, in his statement made on the day after the murder, Cover said he was "practically certain" he left the John Cory Hall at 7.55 p.m. On this basis, even walking slowly, he could not have been at the shop after 8.05 when the deceased was still alive. He told the jury he was there at 8.15pm and that, as the trial judge and the Court of Criminal Appeal expressly recognised, was the lynchpin of the prosecution case against Mr. Mattan. Cross-examination of Cover, in the light of his statement as to the time, would have been likely to be highly damaging.

Secondly, in his statement he said he thought the man coming from the porch had a gold tooth. Cross-examination about that could not have failed to weaken his evidence, particularly if the cross-examination were supported, as it might have well been had the defence known about it, by evidence of Gass's gold tooth.

Thirdly, in his statement Cover referred to the man he saw in the porch as having no hat or coat. Many of the other witnesses who saw Mattan that evening, before and after the killing, spoke of him wearing both. But Cover could not be cross-examined about this because the defence were unaware what his statement said.

Fourthly, Detective Inspector Roberts' note specifically recorded that Cover had identified Gass as the man in the doorway. By the rules then prevailing, that note was probably not disclosable to the defence. But it has obvious significance for this Court, having regard to our task.

Fifthly, as is now known, Gass was of unstable mind, prone to violence against women as well as police officers, and obsessed with knives, at least one of which he used to kill a man in 1954. Again, only some of these matters in relation to Gass could have been before the jury. But we can take them all into account.

Sixthly, 4 eyewitnesses had failed to pick out the appellant on an identification parade and a fifth had positively asserted the appellant was not the man she had seen. Had the jury known about this, Cover's purported identification must, as it seems to us, have been impaired.

There are other matters alleged in the grounds. They were not pursued in oral submissions by Mr Mansfield. It is unnecessary to rehearse or examine them. Once Cover's purported identification of the appellant is demonstrably flawed, as it is, the case against Mr. Mattan collapses and his conviction must be regarded as unsafe.

There have been many changes since 1952 in relation to the investigation of criminal offences and the prosecution and trial of accused persons. The summing-up in the present case was in conformity with the law and practice of 1952, but there are two respects in which it fell far short of current requirements.

It contained no warning to the jury, in accordance with the judgment given by Lord Widgery CJ in Turnbull (1977) 63 Cr.App.R. 132, of the risks inherent in identification evidence.

No direction was given in accordance with the judgment given by Lord Lane CJ in Lucas (1981) 73 Cr.App.R. 159, as to the conditions to be satisfied before the jury could rely on lies told by the defendant as tending to prove guilt.

Furthermore, the crucial witness, Cover, was permitted in a manner which would not now be allowed, to make a purported dock identification of the defendant, both at the Magistrates' Court and before the jury.

In addition, the rules now applicable require far greater disclosure of material to the defence, by the police and prosecution, than was required in 1952. That said, this appeal must be allowed and the conviction quashed.

We add this. It is, of course, a matter for very profound regret that in 1952 Mahmoud Mattan was convicted and hanged and it has taken 46 years for that conviction to be shown to be unsafe. The Court can only hope that its decision today will provide some crumb of comfort for his surviving relatives. The case has a wider significance in that it clearly demonstrates five matters.

1. Capital punishment was not perhaps a prudent culmination for a criminal justice system which is human and therefore fallible.

2.  In important areas, to some of which we have alluded, criminal law and practice have, since Mattan was tried, undergone major changes for the better.

3. The Criminal Cases Review Commission is a necessary and welcome body, without whose work the injustice in this case might never have been identified.

4. No one associated with the criminal justice system can afford to be complacent.

5. Injustices of this kind can only be avoided if all concerned in the investigation of crime, and the preparation and presentation of criminal prosecutions, observe the very highest standards of integrity, conscientiousness and professional skill.

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