England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dellaway & Anor, R v [2000] EWCA Crim 29 (7th April, 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2000/29.html
Cite as: [2000] EWCA Crim 29

[New search] [Printable RTF version] [Help]

R V DELLAWAY and MORIARTY [2000] EWCA Crim 29 (7th April, 2000)

Ref : CAO 99/01593/1719
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 7 April 2000

B e f o r e :
LORD JUSTICE EVANS
MR JUSTICE SCOTT BAKER
and
MR JUSTICE GOLDRING
- - - - - - - - - - - - - - - - - - - -

	REGINA V DELLAWAY &	Appellant

	MORIARTY	Respondent

- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Rose (Appeared on behalf of the Dellaway)
& Mr C Digby (Appeared for the Crown)
Mr P Jessel (Appeared on behalf of the Moriarty)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE EVANS:
The two appellants, Philip Dellaway and John Moriarty, were convicted by majority (10 : 1) verdicts of the offence of conspiracy to supply a class A controlled drug, MDMA (ecstasy). Two other defendants, Trevor Dellaway (Philip Dellaway's brother) and Clifford Hammersley were acquitted. A fifth defendant, David Clark, was taken ill whilst giving evidence and the jury was discharged from returning a verdict in his case. He was later re-tried and acquitted.
The appellant Moriarty had pleaded not guilty to a second indictment, charging him with possessing a firearm and ammunition without a certificate. At the conclusion of the conspiracy trial, he pleaded guilty to that indictment and was sentenced for those offences also.
Philip Dellaway was sentenced to eighteen years' imprisonment and later was made subject to a Drug Trafficking Confiscation Order in the sum of £46,423, with fifteen months' imprisonment consecutive in default. John Moriarty was sentenced to sixteen years' imprisonment for the conspiracy offence, and to one year's imprisonment consecutive for the firearms offences, a total sentence of seventeen years.
The Single Judge refused leave to both appellants to appeal against their convictions. He gave leave to Moriarty but not to Dellaway to appeal against sentence. The applications having been renewed before us, we gave leave to appeal against conviction in both cases, limited to one of a number of grounds put forward, and we also gave leave to Dellaway to appeal against his sentence.
The issue on the appeals against conviction turns on the application of section 34 of the Criminal Justice and Public Order Act 1994 in a case where there are two or more defendants and it is a co-defendant rather than the prosecution which submits that the jury may draw an adverse inference from a defendant's failure to put forward in police interviews the explanation which he gives at the trial as a defence. Section 34 so far as material reads as follows :-
"34(1) Where in any proceedings against a person for an offence, evidence is given that the accused -
(a) At any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on his defence in those proceedings ; ....
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) below applies.
(2) Where this sub-section applies -
.......
(d) The Court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper." (See Archbold (2000) 15-395).
The circumstances which gave rise to the charges of conspiracy were briefly as follows. Hammersley and Clark worked for Bradley Baits, a fishing bait business which exported goods to Holland and Belgium. They made a number of delivery trips, sometimes separately, sometimes together, taking the goods in polystyrene boxes which were taped up. On occasions they brought back other goods that were required for the business, and it was accepted that they often used the opportunity to bring back duty-free goods for themselves, especially tobacco, which they re-sold.
On the evening of 16 June 1998 they crossed the channel to Calais in an Iveco van and made a number of deliveries for Bradley Baits on the following day. They returned to Dover at about 5 p.m. on 17 June and drove to a layby off the M20 where Trevor Dellaway was waiting in another van. Police Officers were keeping observation there. Boxes were unloaded from the Iveco van into his van, and he made a call from a nearby telephone kiosk. Both vans drove off. At 6.47 p.m. he drove his van into the car park of Homebase in Croydon and parked alongside an Astra van. A Sierra motor car was close by. Moriarty was in the Astra van, and Philip Dellaway in the Sierra. Again, police officers were keeping observation and photographs were taken. Five polystyrene boxes, none of which was taped, were moved from the van to the Astra by the three men. A police officer who was only 20 feet away saw Philip Dellaway lift the lid off one of the boxes and look inside. He did not react as someone might on seeing something unexpected.
The three men were arrested and cautioned. The boxes contained packages in which were more than 140,000 tablets of ecstasy, with a street value of about £1½ million. Moriarty said that he thought the boxes contained maggots and that he was to follow Philip Dellaway to another address in Croydon. When the box was opened he said that he knew nothing about the tablets. Philip Dellaway, when asked what was in the boxes, said "I have'nt got a clue .... I don't know, maggots", and when a box was opened he expressed surprise. Hammersley and Clark were arrested at their homes later the same evening. At the police station they both gave "no comment" interviews. The three who were arrested in Croydon gave in interview broadly similar accounts to those they gave in evidence.
At Moriarty's home was found a set of electronic scales, on which there were traces of cocaine, and also a firearm and ammunition.
Philip Dellaway gave a detailed explanation of why he was waiting at the Homebase carpark for his brother's van. The gist of it was that he had arranged to receive what he thought was fishing bait which had come from Clark and was to be delivered to Moriarty, whom he knew as "Fish". He said that he knew nothing about the drugs and was not involved in any conspiracy to supply drugs. He said that Hammersley and Clark had fabricated the account which they gave in evidence, which put all the responsibility on him. Clark said that Philip Dellaway had telephoned him when he was on the Continent and had asked him to meet someone at a service area near Ghent. When he got there, two men transferred what Philip Dellaway had said would be tobacco into the five boxes in his van. Hammersley gave a similar account and said that he was no more than Clark's driver's mate.
Although Hammersley and Clark answered "no comment" in their police interviews, they had given a similar account to the one they gave in evidence to a Mr Frank Swan who was introduced to them at the police station. His evidence of what they had said to him was therefore admissible in order to rebut the co-defendant's suggestion that their evidence in Court was a recent invention. However, Mr Swan's own credibility was open to serious question. Hammersley and Clark, and apparently the police also, thought that he was a solicitor's representative. His business card said "Solicitors Legal Agents" whereas he had no legal qualifications and was a partner in a special security services business.
Moriarty was a keen and skilful fisherman and he said that he had been approached about two weeks before his arrest by Philip Dellaway, whom he did not know before and who talked about buying cheap maggots. He was at the Homebase carpark by arrangement with Philip Dellaway in order to collect the bait. He too maintained that he had no involvement with drugs or any arrangement to supply them. He could not explain why there were traces of cocaine on the scales at this house, which he said that he used for purposes connected with his fishing. A lady who was his cleaner at the house gave evidence that she had used the scales to weigh cocaine. He volunteered the information which led to the police finding the firearm and ammunition at his house. He said that he had obtained it at a time when he was feeling suicidal.
Moriarty was of previous good character and Philip Dellaway had no relevant previous convictions.
At the trial, the judge ruled on the authority of R. v. Pointer [1997] C.L.R. 676 that the prosecution could not invite him to direct the jury that they were entitled to draw adverse inferences against Hammersley and Clark under section 34 of the Act. This was because the police officers accepted that when they interviewed Hammersley and Clark they already had sufficient evidence to charge them and they believed that prosecutions should be brought. Under the Code of Practice, therefore, they had reached the stage where they should cease questioning the suspect, except to ask whether he has said all that he wishes to say about the offence, and they should take him before the custody officer for a decision as to whether or not he should be charged. Code C:16.1 reads as follows :-
"When an officer considers that there is sufficient evidence to prosecute a detained person, and that there is sufficient evidence for a prosecution to succeed and that the person has said all that he wishes to say about the offence, he shall without delay bring him before the custody officer who shall then be responsible for considering whether or not he should be charged".
Code C:11.4 is also relevant and is to the same effect, adding "if the person indicates that he has nothing more to say the officer shall without delay cease to question him about that offence"
Against this background, the judge applied the decision in Pointer in holding that the questions asked of Hammersley and Clark, to which "no comment" answers were given, were not asked "by a constable trying to discover whether or by whom the offence had been committed" within the terms of section 34(1)(a).
The question then arose whether the "no comment" interviews could be introduced in evidence, not by the prosecution, but by the co-defendants who are the present appellants. They attacked the credibility of Hammersley and Clark as part of their defence, and they sought a section 34 direction from the judge in furtherance of their case.
The trial judge ruled that Mr Jonathan Rose, counsel for Phillip Dellaway, could introduce the fact of Hammersley's "no comment" interview but that no adverse comment or criticism could be made. He said this -
"It seems to me that there is inevitability going to be speculation now they know he was interviewed, because he has mentioned it himself. .... I will tell the jury, once that is before them, that in the circumstances of this particular case, there can be no possible inference drawn against Mr Hammersley ....". (transcript 3, 26 January 1999).
This provided a factual basis for Mr Dellaway's defence that the account given by Hammersley in evidence was a `recent fabrication'.
He then directed the jury as he had said he would do -
"You know, in Mr Hammersley's case, he did not answer questions. He had, what lawyers call, a "No comment" interview .... In the circumstances of this case, it must not be held against Mr Hammersley, in any way, that he took that particular course .... do not hold against Mr Hammersley, in any way whatsoever, the fact that he made a no comment interview" (page 20).
He then directed the jury as to the `recent fabrication' defence. He had refused to allow counsel for Phillip Dellaway to make any criticism of Hammersley or Clark within the ambit of section 34.
The submission for the appellant Phillip Dellaway is that the judge was wrong when he held that section 34 did not apply, so as to permit comment on Hammersley's and Clark's no comment interviews, because R. v. Pointer was distinguishable. There, the interview was conducted at a time when the -police not merely had sufficient evidence to charge the interviewee : they had a complete case against him. Here, although the questioning was in breach of the Codes of Practice, it was nevertheless within the scope of section 34. The police needed to be able to prove the guilty state of mind of the person they had arrested, and to exclude the possibility of an innocent explanation of his possession of the drugs. It was still a case, therefore, where they were "trying to discover whether or by whom the offence had been committed."
If this was correct, the submission continued that the prosecution was rightly barred from calling the evidence, but the ruling should have been made under section 78 of PACE. That section applies only to prosecution evidence, and it is established by the recent House of Lords decision in R. v. Myers [1998] AC 124 that a co-defendant may lead evidence which the prosecution may not. Moreover, the right to comment under section 34 goes further than suggesting that later evidence is a recent fabrication : R. v. Daniel [1998] CAR 373.
The first question, therefore, is whether the judge was correct to hold that the decision in Pointer governed the present case. It appears from the transcript of the Court's judgment that counsel for the prosecution "was constrained to concede" that section 34" could not be regarded as applying to the present case" (pages 12-13). The decision of the Court was that the conviction nevertheless was not unsafe, because the judge directed the jury in terms which excluded the possibility of an adverse inference being drawn (pages 13-14).
The situation is that case was one where the officer gave evidence on a voire dire "that, before he interviewed the appellant, he, the officer believed that there was sufficient evidence for a successful prosecution of the appellant for the offence with which ultimately he was charged" (page 7).
These are not the words of a statute, but in our judgment they describe a situation where the interviewing officer is not longer "trying to discover whether or by whom the offence is committed", as section 34 provides. The Code of Practice requires him to consider whether there is sufficient evidence for a prosecution to succeed. Once that point is reached, he has certain obligations under the Code, and any further questions are outside the scope of section 34.
It can hardly be denied that that stage was reached in the present case. Three defendants were caught red-handed in possession of the drugs, and the police had ample evidence to support the charge that Hammersley and Clark were involved in the importation (though both were acquitted after trial). The police witnesses agreed that this was so.
In our judgment, therefore, the judge was right to hold that the decision in Pointer applied and that no comment could be made under section 34. It follows that the appellants' submission fails.
A further question as to the application of section 34 in the present case was raised by Mr Justice Scott-Baker. The section permits the jury to draw inferences when determining whether "the accused" was guilty of the offence charge against him. During this trial the jury was discharged from giving a verdict in Clark's case, and so he ceased to be one of the accused. It is not necessary for us to express a view on this question, and in any event Hammersley's position remained the same.
A related submission was made on behalf of Moriarty in connection with "no comment" answers given by Phillip Dellaway in the course of his "mixed" police interview. These were in response to what counsel described as "certain very important questions" asked about his financial affairs. The judge ruled that these were not relevant to and not probative of the prosecution case against Phillip Dellaway. Counsel for Moriarty, however, sought to introduce them as being relevant to Moriarty's defence. The defence was that, contrary to what Phillip Dellaway said in evidence, Moriarty had not duped Phillip Dellaway into organising the delivery of what he, Phillip Dellaway, thought was fishing bait but was in fact drugs. Rather, Phillip Dellaway was the organiser, and his finances were relevant to that issue.
The judge ruled that section 34 did not apply, because of the decision in Pointer, and that the fact of the "no comment" answers to these questions was irrelevant. "No such factual platform ... exists here in this context" as it did in relation to the recent fabrication issue arising between Phillip Dellaway and Hammesley and Clark. However, the judge acknowledged that circumstances might change in the course of the trial (Transcript 4, 4 February).
We are told by counsel that later in the trial the fact of these "no comment" answers was introduced in evidence, but the judge maintained his ruling that section 34 did not apply.
For the reasons given above, we hold that he was correct to do so.
Other grounds (Moriarty)
Mrs Jessel renewed her application for leave on three further grounds in support of Moriarty's appeal. The first of these concerned the admission of evidence that traces of cocaine were found on electronic scales at Moriarty's home, to which we have referred above.
Mrs Jessel submits that the prejudicial effect of this simple piece of evidence, suggesting at most that Moriarty had some involvement with unlawful drugs of a different kind, which he denied, far outweighed any probative value it might have in relation to his knowledge of the importation of the ecstasy tablets.
The judge considered the authorities including R. v. Mark Peters [1995] 2 CAR 77 (see generally Archbold 2000 25-473 and 13-7 and 8) and held that the evidence should be admitted.
We do not see any ground on which we could hold that his ruling was wrong.
A possibly more substantial point arises in relation to the firearm and ammunition which Moriarty admitted having in his possession (he directed the police where to find them), his unlawful possession of which was charged against him in the second indictment. He pleaded guilty to those charges, but only after the trial on the drugs offence was concluded.
The evidence was introduced not by the prosecution but by Philip Dellaway whose character Moriarty had attacked thereby putting his own character in issue. The objection raised by Mrs Jessel is that Moriarty should not have been asked questions about a pending criminal charge of which he had not been convicted, She relies upon Reg. v. Smith [1989] Crim. L.R. 901. This was to ask him questions about a pending charge which might lead to him incriminating himself of it. Moreover, possession of the gun was totally irrelevant to the charge before the jury.
The evidence was admissible because it became relevant to character under the 1898 Act, as the judge held (transcript 5, 5th February). The judge ruled then that Mr Moriarty could be asked whether his statement (acknowledging possession of the gun) was true. If he agreed that it was, then the cross-examination could continue.
We have the transcript of the submissions made to the judge, including Mrs Jessel's where she relied upon Smith. The judge responded that Moriarty should be given the opportunity to question the accuracy of his statement, if he should wish to do. Hence the procedure which the judge required to be followed, as described above.
Mrs Jessel responded "I cannot gainsay that". However, she submitted to us that Moriarty was placed in an unfair dilemma. Either he agreed that the statement was truthful, or he questioned it, which would itself be untruthful, as he was later to acknowledge by his plea of guilty.
In our view, Mrs Jessel's initial reaction was correct. If Moriarty was in the difficulty she described to us, then it was possible to reformulate the question in such a way that he could have responded to it in some non-committal way.
This was not further explored at the time, and we do not consider that the question which the judge allowed was wrong or unfair in the circumstances of the case.
Character direction
We heard Mrs Jessel's submission on this proposed ground of appeal but we refused leave. The appeals against conviction therefore were dismissed.
Sentence
The judge heard evidence in the course of a lengthy trial. He passed sentences on the two appellants on the basis that this was "obviously, a commercial conspiracy, designed with a view to making a large profit". There were 143,402 tablets worth £10 to £15 each, though they could be bought in Holland "for only £1". Both defendants were in it for substantial profit.
Phillip Dellaway
The judge said -
"I accept that you may not have been at the top of the tree .... but, to my mind, the evidence indicates that you had an organisational role ..."
Mr Rose submits that the sentence of 18 years' imprisonment was manifestly excessive for the subordinate role which Phillip Dellaway played, as the transport organiser. He referred us to R. v. Warren & Beely [1996] 1 CAR(s) 233 and R. v. Totenhave [1996] 2 CAR(s) 91 and submitted that the scale of sentencing should take account both of the quantity of drugs involved in the particular case (in the present case, considerably less than in the two reported decisions) and of the need to "leave room at the top" for those at the top of the tree.
We concluded that 18 years was manifestly excessive for Phillip Dellaway's role as described by the judge. We granted his application for leave to appeal and we reduced the sentence to 16 years' imprisonment. To that extent his appeal against sentence was allowed. We should add that we have taken into account all the circumstances as known to us.
John Moriarty
The judge said -
"I am not satisfied that you had an organisational role .... it may well be... that you were merely taking them elsewhere for someone else to take over"
But he continued =
"That does not mean that your role in it is trivial because those who transport these goods are, necessarily, an essential part of such a conspiracy as this so you, too, face a substantial prison sentence."
The sentence was 16 years' imprisonment, with one year sentences for the firearm offences, concurrent with each other but consecutive to 16 years, total 17 years.
He appealed against sentence by leave of the single judge who said "you are entitled to argue that the sentence passed upon you insufficiently differentiated between your role and that of Phillip Dellaway".
We agree, and taking account also of the reduced sentence on Phillip Dellaway we concluded that the sentence on Moriarty should be reduced to fourteen years' imprisonment. The one-year consecutive sentence should stand. We therefore reduced Moriarty's sentence to 15 years, and to this extent his appeal was allowed.
DTOA Dellaway)
We adjourned this application so that the prosecution can be represented.