England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Tuesday, 3rd August 2004

1. THE VICE PRESIDENT: On 12th February 203 at Cambridge Crown Court, following a trial before Mr Recorder Newton, this appellant was convicted on count 1, (which related to cocaine), and count 2, (to diamorphine), of the possession of class A drugs with intent to supply. He was also convicted on three counts of supplying class A drugs: counts 3 and 5, relating to cocaine, and count 4 to diamorphine. He was sentenced to eight years' imprisonment concurrently on each count; that is to say, the total sentence was eight years' imprisonment. On count 6, which alleged supplying diamorphine, a class A drug, to a man called Hughes, to whom we shall return, he was acquitted.
2. He had been jointly indicted with a woman called Jane Gallienne. She was acquitted on each of the six counts to which, so far, we have referred, but she was convicted on count 7, permitting premises to be used for supplying class A controlled drugs. She sought leave to appeal against conviction, but that was refused, and the application has not been renewed.
3. This appellant appeals against conviction by leave of the Full Court, following refusal of leave by the single judge. It is apparent from the judgment, given by Judge LJ on behalf of the Full Court, that that Court was concerned about late disclosure of surveillance evidence in relation to the premises. But that is a matter which is no longer pursued before this Court. The single ground which is pursued relates to the calling of a man called Hughes, who was treated as a hostile witness.
4. The circumstances were these. On 25th July 2002 the appellant, who lived in south London, travelled from there to Cambridge, arriving about 1.00 p.m.. When, at about 1.30 pm, police raided the house to which he, the appellant, had gone, they found the appellant at the kitchen table on which was laid out a number of items: a substantial quantity of heroin and crack cocaine worth about £12,000, scales, cash, two mobile telephones and a white plastic bag. There was a dispute as to whether the appellant had carried that white plastic bag into the house when he went in. There was some evidence that he did. He claimed that he did not. Also in the house at 1.30 was the co-accused, Jane Gallienne, and two addicts, Kelly Wilkins and Alex Hughes, one of whom had just injected a drug and the other of whom was upstairs with a full syringe in his hand.
5. When they were interviewed, both the accused denied the offences. The appellant then declined to answer questions which he was asked. In due course, the Recorder left to the jury the question of what inferences could properly be drawn from his failure to answer questions.
6. It was the prosecution case that the appellant had come from London to Cambridge to sell drugs, and that in that activity Jane Gallienne was a complicit party.
7. Both the appellant and his co-accused gave evidence before the jury. Each blamed the other. The appellant said he was simply calling on the co-accused, a friend. She said the two addicts were customers of the appellant and that she was quite unaware of what he was doing. So, at the end of the trial, the issue for the jury was, on that aspect, which, if either, of the accused the jury believed.
8. There was a ruling given by the Recorder in relation to the disclosure of telephone evidence. That was a matter which, at one stage, was a ground of complaint, but is not a matter which need further concern this Court.
9. Within that summary framework it is convenient to refer to some of the evidence which was given. A Constable Barnshaw described keeping watch on the premises from about 9 o'clock on the morning of 25th July. He saw the appellant arrive, carrying, he said, a white carrier bag. Five or ten minutes later three other men arrived, none of them carrying anything. When, a little later, the raid on the premises occurred, he saw Hughes in the living room in an incoherent, apparently drugged, state. There was other observation evidence about the appellant entering the premises with a carrier bag.
10. Kelly Wilkins gave evidence of going to Jane Gallienne's house to buy heroin and having been handed the drugs by Jane Gallienne, who, according to Kelly Wilkins, had been supplying him for some three months. When that transaction occurred on this day, the appellant was sitting in the front room, but he agreed in cross-examination that the appellant had never been present when he had bought drugs from the co-accused.
11. The history of Alex Hughes' account of matters is pertinent. On 25th July, which, it will be recalled, was the day of the appellant's arrival at the premises and the police raid, Hughes was interviewed three times in the presence of his solicitor. His response was to make no comment. The following day, however, when his solicitor was not there and when he was withdrawing from heroin, he made a statement to the police in which he implicated both the appellant and the co-accused in drug supply. At that stage he was informed that no further action would be taken against him and he was given £30, ostensibly to obtain a taxi home.
12. Some time later, on 15th November 2002, he went to his solicitor and told him he wanted to withdraw the statement incriminating the defendants. On 16th January 2003, he withdrew that statement, claiming that he had only told the police what they wanted to hear as he had been desperate to leave the police station.
13. The following week, on 23rd January, he was arrested in connection with some other offence, and, according to PC Botterill, who travelled with him in a police car, Hughes then said that he had withdrawn the statement implicating the appellant, because the appellant, who was making about £8,000 a day from drugs, had paid him, Hughes, £100 to withdraw it.
14. An officer called DC Skipworth gave evidence. He was questioned about the interviews with Hughes. He confirmed that it was in the fourth of those interviews that Hughes had implicated the appellant and by the fifth interview had agreed to make the implicating witness statement.
15. In the light of that history of statements from Hughes, counsel, then, as now, appearing for the appellant, Mr Horgan, invited the learned Recorder to rule that Hughes should not be called, at any rate, without the holding of a _voir dire_ in order to decide, if the matter was in doubt, whether Hughes would prove to be a hostile witness. The Recorder ruled that the question of hostility, or not, had properly to be determined not on a voir dire, but in the presence of the jury, so that the jury could hear and see the answers given by the potentially hostile witness. The learned Recorder further ruled that the prosecution were entitled to wait and see whether or not, that course having been followed, the witness would prove to be hostile. If they did, the Recorder ruled that the Crown should proceed carefully in order to limit possible prejudice to the defence.
16. Hughes did give evidence before the jury. He did prove to be hostile. He in consequence was cross-examined by counsel for the prosecution and by counsel on behalf of the co-accused Gallienne: what he was prepared to say was capable of supporting the defence of Gallienne, much to the prejudice, as Mr Horgan submits to us, of this appellant. The appellant himself and the co-accused, as we have said, both gave evidence, the substance of which we have already sufficiently rehearsed for present purposes.
17. On behalf of the appellant Mr Horgan advances in his written skeleton argument, elaborated upon by his oral submissions, three propositions. First, a trial judge has power to rule that the Crown should not be allowed to recall a reluctant, or hostile, witness for the sole, or primary, purpose of putting before the jury previous statements not made on oath by that witness. Secondly, evidence of bad faith in the obtaining of such previous statements may give rise to such a course. Thirdly, there may be cases in which a judge could, at his discretion, hold a voir dire, in order to determine whether the witness would be hostile and the extent of and reasons for that hostility; though the course of holding a voir dire should only rarely be followed.
18. Mr Horgan accepted a number of propositions of law set out in the written submissions of Mr Godsmark QC on behalf of the Crown, and it is convenient summarily to rehearse those. First, the prosecution is entitled to call a witness who has the potential to be hostile and to see whether in fact he is so. This is so even where the witness has earlier given hostile evidence: see Mann 56 Cr App R 750 at 756.
19. Secondly, faced with a potentially hostile witness, a judge should be alert to two important principles. First, the need to encourage witnesses to perform their duty to help the criminal process, and, secondly, the need to ensure that evidence should not be led, or statements made, whose probative value is substantially outweighed by the prejudice they are likely to cause: see Honeyghon and Sayles (unreported) Court of Appeal Criminal Division transcript, 31st July 1998, where those two considerations, and the need to balance them, are set out at page 9 of the judgment.
20. Thirdly, only rarely will it be appropriate for a judge to conduct a voir dire to determine how the witness is going to give evidence, because the jury needs to see the whole of the evidence given by a witness in order to assess the witness: see Khan, Dad and Afsar [2002] EWCA Crim 945, Court of Appeal Criminal Division transcript of 19th March 2002, and, in particular, the judgment of Kay LJ paragraphs 26 to 34. In that regard we respectfully endorse the observations by Kay LJ at paragraph 34 in relation to the holding of a voir dire, that:

"... in our judgment it is a course that should only rarely be followed. The problem with the course is that it means that the jury will see a witness apparently giving evidence in one frame of mind and then will come back to that witness after events have occurred in their absence which may have brought about a complete turn about in the evidence that he gives. For such a jury to assess fairly what reliance they can place upon the evidence of a witness will be nigh-on impossible. Therefore, although there may be exceptional circumstances, we do not see that these were such circumstances in this case ..."

We respectfully agree that it is only in very exceptional cases that a voir dire should be held in order to determine whether or not a witness will prove to be hostile.

21. The next proposition which Mr Godsmark advances is that a judge has a discretion as to whether to allow a party to treat their witness as hostile and cross-examine, and that discretion will only be reviewed on appeal in exceptional circumstances: see Manning [1968] Crim LR 675.
22. Next, Mr Godsmark submits that a hostile witness direction by the judge should point out that it is for the jury to decide whether they can accept any part of the evidence given by a hostile witness. The judge should draw attention to the conflict between the evidence given and the previous statement made, and warn the jury as to the weight which ought to be attached to such evidence. They should be told that the contents of witness statements are not evidence, save to the extent that the witness says that they are true.
23. Finally, Mr Godsmark submits that, where a hostile witness under cross-examination asserts the truth of his statement, the jury must be warned to treat his evidence with caution. We accept Mr Godsmark's propositions.
24. Mr Horgan, having accepted the correctness of these propositions, submits that in the present case it was, as he puts it, "plain as a pikestaff" that Hughes was going to be hostile. He accepted that that was not a bar to him being called as a witness, because in some cases it may be appropriate to wait and see, but the circumstances of the present case did not give rise to a wait and see situation, because it was plain that Hughes was going to be hostile.
25. Mr Horgan submits that the factual background in relation to the making of statements by Hughes gives rise to a reasonable suspicion of bad faith on the part of the police officers. There were a number of interviews in the presence of his solicitor when he made no comment and then made a statement when his solicitor was not there; the officers knew that, when he made the statement implicating the applicant, Hughes was withdrawing from heroin; the payment of £30 to Hughes; the coincidence of PC Botterill's conversation with Hughes with the withdrawal of his statement and the circumstances of that conversation. When Hughes gave evidence contrary to his original witness statement, the Crown's application to treat him as hostile could not reasonably be opposed. The entirety of his witness statement was cross-examined in by the Crown, there was prejudice to the defence, exacerbated by the cross-examination of Hughes and submissions by counsel on behalf of the co-accused and the cross-examination of PC Botterill about the conversation with Hughes, which could never have been admissible before the jury had Hughes not given evidence in the first place. By reason of these matters, the position of the appellant, submits Mr Horgan, was irremediably prejudiced, particularly by the failure to hold a voir dire.
26. Furthermore, he submits, the learned Recorder did not deal appropriately with the evidence of Hughes in the course of his summing-up. In particular, Mr Horgan submits that the Recorder went too far in the direction which he gave to the jury, effectively withdrawing from the jury the opportunity to rely on parts of Hughes' evidence which might have helped to exculpate the appellant.
27. What the learned Recorder said at page 24B was this:

"You will have to decide, bluntly, whether you can accept any part of his evidence that he gave to you in court. If you decide that there is a serious conflict between the evidence he gave you and the statements previously by him then you may think that you should reject his evidence all together and not rely upon anything he said as a witness."

At page 26G the Recorder said:

"So, members of the jury, effectively he was contrasting what he had said in the police statement in evidence and you may think that during the course of his evidence that there was very little in the statement that he was prepared to adopt. It is a matter for you whether you can accept any part of his evidence at all."

Mr Horgan's submission is that those two passages amount to a direction to the jury to reject Hughes' evidence all together and not rely on anything he said as a witness.

28. On behalf of the Crown, Mr Godsmark QC submits that what this appeal is about is an exercise of discretion by the trial judge in relation to the calling of Hughes and, thereafter, his treatment as being hostile. Mr Godsmark, unlike Mr Horgan, took us to the ruling given by the learned Recorder. He submits that the learned Recorder properly directed himself as to the law, took into account all relevant factors and did not take into account any irrelevant factors. His conclusion in consequence, submits Mr Godsmark, was unimpeachable in the manner in which the evidence of Hughes was dealt with.
29. Mr Godsmark points out that this never was a case in which Mr Hughes at any stage recanted the whole of the account which he had given. On the contrary, there remained recurrent themes in his statement whether the statement was, or was not, implicating the appellant, namely, that he, Hughes, and Wilkins had gone to the premises to "score" drugs, and had done so. Further, they had not taken the drugs which were seized by the police at the premises to those premises, and, furthermore, Hughes and Wilkins had themselves taken drugs at the raided premises.
30. Mr Godsmark submits that, in the light of the history of the statements made by Hughes, everyone was alert to the possibility that Hughes might be hostile. But, he submits, the allegations of bad faith made by Mr Horgan, even if substantiated, do not bear upon this appeal, save insofar as they are relevant to whether or not a voir dire should be held. Such a course, Mr Godsmark submits, should very rarely be followed, as Kay LJ said in Khan.
31. So far as the summing-up is concerned, when the two passages which we have cited are read, it is plain, submits Mr Godsmark, that the Recorder was not withdrawing from the jury consideration of Hughes' evidence. He was very properly warning the jury as to the caution which they must exercise in relation to it, but he was leaving to the jury the extent, if at all, to which they relied upon it. In any event, Mr Godsmark points out, in having acquitted the appellant on count 6, that is in relation to supplying Hughes, it may very well be that the jury did accept Hughes' account in that regard.
32. Mr Godsmark points out that Hughes said in evidence that he had taken his heroin to the house and had gone there to obtain crack, whereas, in his witness statement, he said he had obtained both drugs at the house. Therefore, submits Mr Godsmark, the jury had clearly disregarded the witness statement, in accordance with the direction which the Recorder had given, and had attached appropriate weight to Hughes' evidence as directed. But this was not enough for them to vindicate the appellant entirely, although they acquitted him on count 6.
33. Finally, in his written submissions, Mr Godsmark draws attention to the abundant evidence against the appellant pointing to his guilt, namely, his arrival shortly before the raid, as we earlier set out; the fact that, on his way from London, as his telephone records revealed, he had telephoned Hughes twice; the equipment and drugs found on the table, next to which the appellant was sitting, was sufficient to provide some 745 deals of heroin and over 250 deals of crack cocaine; and both Wilkins and Hughes, at the time of the police raid, had just taken drugs there.
34. In our judgment, the learned Recorder exercised his discretion properly in accordance with the law. He took into account those matters which he ought to have taken into account. He did not take into account anything which he ought not to have taken into account. His conclusion that no voir dire should be held, as it seems to us in the circumstances of this case, was wholly unimpeachable. As we have already said, it must be very rare indeed where the circumstances justify the holding of a voir dire. There was a careful course chartered by the Recorder, and subsequently followed by counsel, as to the way in which Hughes' evidence should be dealt with if he demonstrated hostility and was treated as a hostile witness. As it seems to us, there is no substance in the ground of appeal advanced by Mr Horgan, despite his blandishments.
35. We add, finally, that there was, in any event, overwhelming evidence against this appellant. There is no reason whatever for regarding his conviction as being unsafe. Accordingly, this appeal is dismissed.