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Criminal Appeal and Extradition
Appeals against Conviction; England and Wales
Appeal against Conviction; England and Wales
Appeals against Sentence; England and Wales
Caribbean Case Summary
Appeals against Conviction; England and Wales

By Paul Taylor QC

 

Historic sex offences – bad character evidence – absence of judge’s direction

 

R v Adams

 

[2019] EWCA Crim 1363

 

A was convicted of six counts of rape and eight counts of indecent assault.  He was sentenced for those offences to a total of 15 years' imprisonment. There were two complainants, M and G.

 

CACD quashed the convictions on the basis that the judge erred in not giving the jury any direction about whether, and if so how, they could rely on the evidence of each complainant when considering the allegations made by the other. 

 

At trial the prosecution did not seek to put its case on the basis that evidence relating to any of the counts on the indictment was admissible in relation to the issue of whether A was guilty on any other count. Consequently, [18] “the jury ought to have been directed that, in considering each count, they should have regard only to the evidence which was directly relevant to that count and should ignore evidence relating to other counts…[whilst he did direct them to consider each count separately [19]] No such direction was given by the judge.  Indeed, he did not give any direction to the jury at all with regard to whether, and if so how, they could take account of evidence relating to one count when considering other counts and in particular whether they could take account of either complainant's evidence when considering the allegations made by the other.”

 

This was “a case in which…the question whether the evidence of each complainant was admissible in relation to the allegations made by the other was potentially of great significance to the jurors' decisions.  In these circumstances, we consider that the failure to give any such direction makes the appellant's convictions unsafe.”

 

Commentary:

The CACD emphasised the need for the prosecution to adhere to procedural rules when seeking to adduce bad character evidence, even if with hindsight it could be said that if an application to adduce such evidence had been made, it might properly have succeeded.

  1. The fact was that “no such ruling was sought or given and, unless the procedure for admitting evidence of bad character is to be treated as a complete dead letter, that meant that the evidence was inadmissible and the appellant was entitled to have the case decided on the basis that evidence on each count was inadmissible in relation to other counts".  That in turn made it necessary for the judge so to direct the jury. [21]
  2. “Looking at the matter more broadly, the general tendency of the criminal law over time has been towards a gradual relaxation of rules of evidence and an increasing willingness to trust to the good sense and rationality of juries to judge for themselves whether particular evidence is relevant to an issue they have to decide and if so in what way.  But we have not yet reached the point where evidence of a defendant's bad character can be left as a free for all.  The particular ways in which evidence that a person has committed one offence may or may not be relevant in deciding whether that person is guilty of another offence are not always immediately obvious even to legal professionals and have had to be worked out by the courts in a number of cases.  Lay jurors are entitled to assistance on these questions and cannot be expected to work out the approach which the courts regard as proper for themselves.  It therefore seems to us to be essential that, in a case of this kind, the jury should be given clear directions on whether, and if so how, evidence relating to one count may be taken into account in deciding guilt on another count". [22]

 

 

Hearsay evidence – car registration number

 

R v Nico Brown

 

[2019] EWCA Crim 1143

 

The CACD considered whether the trial judge erred in admitting as hearsay evidence a statement made at the scene of a crime by a person who could not afterwards be identified or traced.

 

The victim had been stabbed in his car. The assailant was seen to get out of a car, make repeated downward thrusts with a knife before running back to his own car. NB was charged with wounding with intent to cause gbh and possession of an offensive weapon on the basis that he was the assailant.  He denied that he was that person.  

 

A witness, Ms Ghani, made a 999 call immediately after the incident in which she gave what she said was the registration number of the car driven by the assailant. The number reported matched the number of a car of which NB was the registered keeper. 

 

Ms Ghani gave evidence that she saw a man trying to stab someone who was sitting in the driver’s seat of a car; but she then immediately rushed to her child, who was standing at the front of the bus, to cover his eyes.  She had seen another black saloon car behind the victim’s car but did not herself note its registration number.  Within 40 seconds of the incident she made a 999 call.  The call was recorded and on the recording Ms Ghani’s voice can be heard reporting the stabbing and giving a car registration number which she said was that of the car driven by the assailant.  Ms Ghani said in evidence that she read this number from the mobile telephone of a woman who was sitting behind her on the bus.   Ms Ghani did not know this person and recalled that she had a South African accent.  On the recording of the 999 call, a woman’s voice can be heard in the background helping Ms Ghani with the phonetic spelling (Papa, Foxtrot etc) of the registration number.

 

On footage from a CCTV camera inside the bus showing the front of the top deck a female passenger can be seen sitting behind Ms Ghani.   When the bus began to move, which was immediately after the stabbing occurred, the passenger can be seen retrieving her phone.  Then, while Ms Ghani was making what must have been the 999 call, the passenger behind her can be seen during the call holding out her phone towards Ms Ghani so that Ms Ghani could see the screen.  

 

The police made extensive efforts to trace this passenger. It had not been suggested that there was any further step which the police could reasonably have taken. Their efforts were unsuccessful.

 

Ms Ghani was able to give first-hand evidence that the number she reported to the operator during the 999 call was a number that she read from the screen of the mobile phone shown to her by the person who was sitting behind her on the bus.  But she had no direct knowledge that the number recorded on that person’s mobile phone was the number plate of the car to which the assailant returned after the attack.  Her belief that this was so was based on what her fellow passenger had told her.  That person’s statement to Ms Ghani was therefore admissible as evidence of the truth of the matter stated if, but only if, this case falls within one of the limbs of section 114(1) of the 2003 Act.  

 

The CACD analysed the various bases upon which the hearsay evidence could be admitted. It concluded that the evidence was admissible on the basis that it formed part of the res gestae.

 

 

 

Jury question – adequacy of judge’s response

 

R v Medouni and Kouider

 

[2019] EWCA Crim 1283

 

M and K were convicted of murder. The CACD considered the directions given by the trial judge in answer to a question asked by the jury during their deliberations. The sole point was whether the answer provided to the jury question was unbalanced and heavily weighted in favour of the prosecution. It was submitted that the judge should also have reminded the jury of the appellant’s evidence. Further it was argued that the judge should have informed the jury that the question was not one of interpretation.

 

The Judge received a note and discussed it with counsel. Appellate counsel accepted that “the submissions made by counsel at the time of the note suggests approval of the proposed direction, or at least, acquiescence. He was not present in court but was consulted by telephone. He did not agree the proposed response but did not pursue the matter.” [25] It was submitted that “the real question for this court should be not the attitude of trial counsel but the adequacy of the direction irrespective of agreement or acquiescence at the time.”

 

The CACD rejected the argument that the Judge’s response was in any way inaccurate. It pointed, inter alia, to the following matters in support of this conclusion: the judge had provided the jury with clear written directions and a route to verdicts. He had summed the evidence up over considerable time with care and in detail.

 

 

 

Historic sex offences - Abuse of process – loss of evidence by police

 

R v PR

 

[2019] EWCA Crim 1225

 

This case will be reviewed in detail in the September bulletin.

 

This appeal concerned whether the trial judge was right to allow the case to proceed when evidence gathered by the police in 2002, relevant to the appellant’s defence, was destroyed by water damage and was unavailable for the trial in 2018.  PR submitted that the judge wrongly refused his application, which was renewed following the prosecution’s evidence, to stay the proceedings as an abuse of process.

 

 

 

“Potting” – whether urine is a “noxious thing”

 

R v Versey, Monroe and Beardshaw

 

[2019] EWCA Crim 1225

 

These three cases, otherwise unconnected, were listed together because each raises issues as to a form of assault which is colloquially referred to as "potting" (a prisoner either throwing at a prison officer, or smearing a prison officer with, urine, faeces or a mixture of the two). The question is whether it amounts to an offence under section 24 of the Offences Against the Person Act 1861, of unlawfully and maliciously administering a noxious thing with intent to injure, aggrieve or annoy. Is urine capable of being a noxious thing in this context? At para 26 Holroyde LJ stated:

 

“In our judgment, where an issue arises as to whether a substance is a noxious thing for the purpose of section 24 of the 1861 Act, it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition. In the present case, the judges below were entitled to find that a cupful of human urine, from an unknown source, thrown at the face of a victim is capable of being regarded as an unwholesome, and therefore a noxious, thing….”

 

 

If you would like to speak to Paul Taylor QC about these cases, please email here.