England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15th January 2010

1. LORD JUSTICE LAWS: This appellant faced her trial alongside three co-defendants on an indictment containing nine counts. She was charged alone on count 9 which alleged an offence of possessing criminal property. On 16th December 2008 before His Honour Judge Greenwood at the Harrow Crown Court she was convicted by the jury, and on 20th January 2009 was sentenced to a community service order with appropriate requirements. She had been acquitted at the case management hearing on count 1 which charged an offence of conspiracy to rob and was the only other count in which she was named.
2. Her co-defendant, Walkington, pleaded guilty to four counts of robbery (counts 3 to 6) and was sentenced in all to 4 years' imprisonment. Robinson pleaded guilty to one count of robbery (count 6) and was sentenced to 3 years. Odu pleaded guilty on rearraignment to two counts of robbery (7 and 8) and was sentenced to 3 years. The appellant appeals against conviction on ground 2 of her pleaded grounds by leave of the single judge. She also renews her application in relation to ground 3 on which the single judge refused leave.
3. On 20th January 2008 the appellant telephoned the Kwik Fit garage at Camden and said she needed a tyre changed. She went to the garage in a BMW (registration WM02NEO) and was told that she needed two new tyres. She was quoted a price and at length paid for the tyres with £360 in cash in £10 notes. She gave the garage staff the name of "Cheryl Jones". The notes were stained with a blue dye. When the garage staff took them to Barclays Bank on 22nd January 2008 they were told that the notes had been retained and the police informed because of the dye. The police duly had the notes examined and they were found to be stained with a dye that had originated in a cash box stolen by Odu, the co-defendant and indeed the appellant's partner at the time, in one of the robberies which had taken place at the HSBC.
4. On 25th January 2008 the police raided the appellant's home address where they found more bank notes stained with dye from the robbery, some of them in a bag with Odu's name on it.
5. The appellant gave a "no comment" police interview. At trial the question for the jury was whether the appellant knew or suspected that the cash was the proceeds of a robbery. In evidence she said that Odu worked as a caretaker. She told the jury that Odu had bought the BMW for her, though he mainly used it himself. She had noticed that the bank notes were stained with blue dye but she said Odu told her that she had washed his jeans with the money in the pocket. She did not know that the cash was from the robbery nor indeed at that time did she know that Odu had committed the robbery. She said that some of the money seized from the flat belonged to Odu and some was money that he had borrowed from her. Cross-examined, she said she believed that Odu got his money from his work. She herself had about £800 in a savings account.
6. The Crown sought to cross-examine her in relation to certain expensive items found at her home including a flat screen TV and two computer consoles, to suggest that they must have been obtained illegally and also to suggest that money found at the house which did not come from robbery, showed that Odu was involved in crime and generating the proceeds from it. Odu's life-style must have told her that he was involved in crime and that the BMW must have been purchased with illicit funds and its transfer from the appellant's name to the name of Cheryl Jones was a sham to distance Odu and perhaps the appellant herself from the car.
7. In his ruling on the Crown's application to mount this cross-examination, much emphasis was placed by the judge on the appellant's evidence that she believed that Odu worked as a caretaker. He said this:

"The Crown have challenged that account. The Crown say that she couldn't possibly have believed that he was a caretaker because they were spending considerable sums of money. She couldn't possibly have believed that he was caretaker because of all the expensive possession in the house. She couldn't possibly have believed that he was a caretaker because of all the cash around her flat at a time when, certainly, for some of the time, he was living with her.

In my judgment, the Crown are perfectly entitled to test her account in this way and, indeed, it goes to the heart of this matter, bearing in mind that the issue, based on the account she has given, is whether she knew or had a suspicion that this money was the proceeds of the robbery, admittedly committed by her partner, Christopher Odu. Accordingly, in my judgment, the Crown are entitled to cross-examine in the way they are."

In addition, having earlier ruled against an application by the Crown to adduce evidence of Odu's bad character, the judge was at pains (transcript Vol II, page 3D) to emphasise that no offences of Odu should be referred to other than the robbery in which he was convicted on the indictment.

8. The appellant's argument on ground 2, for which the single judge gave leave, is essentially that the matters sought to be cross-examined to necessarily amounted to evidence of bad character or misconduct within the meaning of the Criminal Justice Act 2003 (section 98) where such evidence is defined as:

"... evidence of, or of a disposition towards, misconduct on his part, other than evidence which—

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence."

No application was made under the 2003 Act to allow the cross-examination on the basis that the material in question fell within section 98. Accordingly the judge did not consider the relevant provisions of the Criminal Justice Act and the evidence was wrongly admitted.

9. The appellant says that these matters were not probative of the critical issue in the case. He relies on R v Gordon (1995) 2 Cr App R 61 in which this was said:

"... the Court of Appeal stated that evidence of marginal relevance may be and should be excluded if it would lead to a multiplicity of subsidiary issues. It is the duty of the judge, whether objection is taken or not, to ensure that irrelevant evidence (particularly when it is prejudicial to the defence) is not received in court ...

It was not relevant or admissible to cross-examine as to past credits of withdrawals which could only found an inference of past drug dealing (as opposed to present and active drug dealing)."

10. The Crown in counsel's skeleton sets out the passages in the evidence containing the cross-examination which the judge permitted and which are now objected to. At several points Crown counsel is seen to ask the appellant whether by January 2008 she knew or suspected that Odu was getting money from crime. It seems to us that that is no more than an instance of the Crown putting a central part of its case to the defendant. That leads to the correct answer to ground 2 in this appeal. It is to be noted that the purpose of the whole of the cross-examination which was allowed by the judge, was not simply to blacken Odu; it was distinctly to establish a fact, central to the Crown's case, namely the appellant's state of mind concerning cash which she got from Odu, in particular, of course, the £360 she took to the garage. It is plain that the wider questions about the TV, the car, along with his life-style were at least relevant in that context.
11. However, Mr George submits that they are outside section 98, relevant or not. He relies on the decision of this Court in R v Tirnaveanu [2007] 2 Cr App R 23, in which the Crown sought to adduce evidence relating to documents found at the appellant's house or houses which contained details referable to illegal immigrants. The prosecution desired to call, in connection with those documents, evidence from the immigrants and evidence from immigration officers in relation to such immigrants. The appellant was charged with an offence or offences concerning the introduction of illegal immigrants into this country. The evidence sought to be adduced to which we have just referred concerned other instances altogether from those forming the subject of the indictment. The court said this at paragraph 23:

"The basis on which it was contended before us by the prosecution that the evidence which they sought to adduce was 'to do' with the facts of the alleged offence was that it was evidence which was central to the case in that it related to proving that the appellant was the person who had committed the offences charged in the various counts. We do not accede to that submission. As counsel for the prosecution accepted, if his submission was right, then in any case, where the identity of the defendant was in issue (including, by way of example, cases of sexual misconduct), the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other occasions which helped to prove identity. It seems to us that the exclusion must be related to evidence where there is some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seek to adduce."

12. Mr Allan, for the Crown, submits to us that central to the reasoning in the court's judgment in that case is a distinction between evidence which is relevant to the alleged offence and evidence which is to do with the alleged offence. The fact that evidence falls into the first category will not of itself take it out of section 98, if it otherwise belongs there. So evidence which is to do with the offence is something narrower than evidence merely relevant to it.

12. In the present case, it is submitted that in contrast to the facts in Tirnaveanu there is a close nexus between the subject matter of the evidence sought to be introduced and the facts of the case. The facts of the case involve (i) cash (ii) coming from Odu (iii) in January 2008 and (iv) concerning a BMW motorcar. The evidence sought to be introduced related to cash coming from Odu, in a period up to January 2009, a BMW was involved and other circumstances relating distinctly to the conduct of the man, Odu. In those circumstances it seems to us there is a distinction between the facts here and those in Tirnaveanu. We conclude that in this case the material sought to be introduced was evidence which had to do with the facts of the offence alleged. In those circumstances, as it seems to us, ground 2 fails.
13. As we have said the appellant also seeks to renew ground 3. This alleged that the judge's summing-up was "deficient and could be perceived as being unfair". In counsel's written argument the ground has a number of elements. Principally it is said that the judge gave no direction as to how the jury should approach the evidence which he had allowed the Crown to elicit in cross-examination. The premiss of this complaint is that the evidence is bad character evidence within section 98, when a particular or special direction may be called for. But we have held that this was not such evidence. It is to be noted that at trial counsel were given an opportunity to suggest what directions the judge might give to the jury. There was no submission that there should be a special bad character direction or, for that matter, a direction along the lines of the Gordon case. In light of Mr George's elegant and helpful submissions this morning, we should add that the judge's reference in the earlier ruling to the need for care to be taken not to introduce evidence of other offences by Odu does not assist in relation to this ground of appeal.
14. There are some other complaints made in the written argument, not developed by Mr George this morning. That is no criticism of him. We assume he would wish us to consider them. It is said, for example, that the appellant's evidence was summed-up by the judge in a distinctive and prejudicial style. He repeated many of the questions that the Crown had asked and used such expressions as "it was put to her" and so "so she was asked." The submission is that this had the effect of cross-examination. We do not agree. The summing-up was well balanced and comprehensive. Nor is there anything in the particular point about the judge's treatment of what the appellant said about putting the car in a false name.
15. For all those reasons, we will not grant leave to argue ground 3 and the appeal on ground 2 is dismissed.