England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		22 July 2010

Thursday 22 July 2010

LORD JUSTICE MOORE-BICK: I shall ask Mr Justice McCombe to give the judgment of the court.

MR JUSTICE McCOMBE:

1. On 25 March 2009, in the Crown Court at Birmingham, before His Honour Judge Thomas QC and a jury, the applicant was convicted of aggravated burglary and was sentenced to a term of imprisonment for public protection with a specified minimum custodial term of six years (less four days spent in custody on remand). He now renews his application for leave to appeal against his conviction, following refusal of such leave by the single judge.
2. The renewed application is presented some considerable period out of time. This morning Mr Duck has amplified what was said in the letter from the solicitors explaining that delay. We are satisfied that an adequate explanation has been given and we grant the extension of time.
3. The circumstances leading to the charges are set out in full in the Criminal Appeal Office Summary. The short issue is this. The complainant was the ex-partner of the applicant's mother with whom he had been in a long-term relationship. The complainant had been blind since 1989. He was 51 years old.
4. Between the late evening of 18 September and the early hours of 19 September 2008 he was in bed when two men forced themselves into his home. One of them threatened him with a sawn-off shotgun. A second man searched the premises and in the course of a search of the kitchen drawers said, in a disguised voice, "I can't find it. I don't know where it is". The complainant stated in evidence that he recognised the applicant's voice straight away from that short sentence and asked, "Is that you, Daniel?" All movement ceased from the men and one of them was said to have said, "Shush". The complainant bravely fought back and managed to dislodge the gun from the man's grasp. The barrels became detached and were left at the scene. The two men left empty handed.
5. The case for the Crown turned upon that voice recognition. The submission was made throughout by the defence that it was a weak case of recognition. To an extent, that was at one stage conceded by counsel for the Crown in the course of argument before the learned judge.
6. The main argument which Mr Duck seeks to adduce on behalf of the applicant on the proposed appeal is that the applicant's two convictions for aggravated burglary should not have been permitted to be adduced in evidence because they were prejudicial, in support of what he says was a weak case and in breach of the principles set out in the judgment of this court in R v Hanson [2005] 2 Cr App R 21.
7. In the course of the trial, and in the light of the ruling on the applicant's convictions, Mr Duck applied to adduce in evidence the convictions of the complainant, who had had convictions for indecent assault and certain other matters. It was suggested as part of the defence that the complainant had a motive for making false accusations because of the applicant having spread the fact of his conviction for indecent assault widely in the local area.
8. Mr Duck's submission to us is that he ought to have been allowed to adduce those convictions. He submits that the applicant's convictions should not have been permitted to be adduced in evidence, but in any event he submits that there was an imbalance created by the admission of the applicant's convictions, as against the apparent good character of the complainant in front of the jury.
9. We have considered those points. There is much no doubt to be argued, and we have not heard from the Crown. We consider, however, that the points have sufficient merit to warrant a grant of leave to argue the case as a whole before the full court and we grant leave accordingly.

LORD JUSTICE MOORE-BICK: Mr Duck, you have your leave. Are you asking for a representation order?

MR DUCK: I am, my Lord, yes.

LORD JUSTICE MOORE-BICK: To include today, I take it?

MR DUCK: I am grateful, my Lord.

LORD JUSTICE MOORE-BICK: Yes, very well.

MR DUCK: I am very grateful, my Lord.