England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 July 2011

1. LORD JUSTICE TOULSON: On 21st September 2010 at Inner London Crown Court before His Honour Judge Fraser the appellant was convicted of conspiracy to supply crack cocaine. He was sentenced to 16 years' imprisonment. He appeals with leave of the single judge against his conviction. The grounds of appeal have to do with the propriety of questions put to the appellant in cross-examination on material which had been disclosed in advance to the defence but had not formed part of the prosecution's evidence until the defendant was giving evidence.
2. The prosecution's case was that the appellant conspired with others, including his cousin and co-accused Richardson, to bring cocaine from Barbados into the United Kingdom to supply to others. Richardson went to Barbados on 10th March 2010 and returned on 18th March 2010 with two suitcases containing cocaine. A third defendant, Trepasso, drove Richardson from Gatwick Airport to the appellant's address. Leaving Richardson at the house, the appellant then went with Trepasso to the appellant's niece's home where the drugs were left. Trepasso then drove the appellant back to his own home and drove off. The appellant was arrested together with Richardson shortly afterwards. Richardson, like the appellant, was convicted. Trepasso was acquitted. In the appellant's possession was found a key to one of the suitcases containing the cocaine.
3. A major part of the prosecution's case was based on phone evidence. The appellant and Richardson had each bought a pay-as-you-go phone at the same time shortly before Richardson flew to Barbados. By that date both phones were active. They had similar numbers. Grocott's number was 07908947135 and Richardson's was 07908947115.
4. Grocott also had another mobile which featured in the case. The prosecution prepared a schedule of contact made between the various defendant's phones. The schedule recorded entries relating to five telephones: the two phones of the appellant to which we have referred, Richardson's phone, a phone belonging to Trepasso and a fifth phone, the ownership of which was unknown to the prosecution. It was referred to as "the white phone" because that was its colouring in the schedule. It featured in the case because there were calls between that number and one of the appellant's mobiles.
5. The evidence showed that there was very considerable traffic between the two pay-as-you-go phones of the appellant and Richardson with similar numbers during the period of Richardson's time in Barbados and the incidence of calls built up in a crescendo to the time of the presumed acquisition of the cocaine followed by Richardson's return.
6. In summary, therefore, the case against the appellant and Richardson were that they were in possession of suitcases found to contain a large quantity of cocaine in circumstances where the appellant had a key to one of them, and there was evidence of very considerable telephone contact between them, as well as a significant amount of telephone contact on the appellant's other phone between himself and Trepasso.
7. The appellant gave evidence. It was his case that the calls he made to Richardson in Barbados were entirely innocent. He denied the prosecution's suggestion that the pair of phones which they had bought at the same time were "dirty" phones, ie intended for usage in connection with this drugs importation. His explanation for his acquisition of the phone was that he was impressed by the quality of the phone which Richardson bought and decided to get one of the same kind. He had no awareness that Richardson was involved in a drug importation until Richardson arrived at his flat on return from Gatwick where Trepasso met him. Richardson then told him that he had been asked to bring back what he (Richardson) understood to be some cannabis and had done so. The appellant wanted nothing to do with it, but was prepared to help Richardson get out of his dilemma by assisting him to store the cannabis (as he believed it to be) until such time as the owners could collect it. It was for that purpose that he moved the goods to his niece's flat.
8. In the course of his evidence the appellant said that he used what the prosecution alleged was the dirty phone to call his wife and children, so advancing a positive case that this was a perfectly ordinary phone used for his general family and social purposes. He also explained his telephone contact with the white phone by asserting that the white phone belonged to a man called "T" who was his (the appellant's) cannabis supplier. It was these matters which led the prosecution to seek to cross-examine the appellant on the phone billing records of which the schedule provided to the jury was a redacted version. Mr Reid objected on the grounds that the only foundation for admitting such evidence was by way of rebuttal and that there are strict rules on the admission of rebuttal evidence. It must arise truly ex improviso. He referred to authorities on the point. Before us he cited in particular the case of Scott (1984) Cr.App.R 79 at page 49, in which Lawton LJ stated the principle as follows:

"If the prosecution could reasonably have foreseen that a particular piece of evidence was necessary to prove their case they should have put it before the court as part of their case. They should not wait until the defendant has given evidence to produce that evidence. Much, however, will turn on what is reasonable."

We were referred also to the case of Pilcher (1974) 60 Cr.App.R page 1.

9. The judge ruled that the prosecution should be permitted to ask questions of the appellant based on the fuller billing documents, arising from what the appellant said about his usage of the phone to call his wife and children, and about his usage of the white phone. It was then put to the appellant by Mr Gadsden that the phone records showed that he had made no calls to his children and only two calls to his wife, compared with 74 calls to the co-defendant Richardson. Counsel for the prosecution also put to him the total number of calls, showing that overwhelmingly the largest category were calls to and from Richardson. He was also asked questions about calls to the white phone which were not on the schedule before the jury. The thrust of the cross-examination was as follows. The appellant's case was that, coincidentally with his innocent calls to Richardson in Barbados, he was arranging a purchase of a modest amount of cannabis from his supplier, using the white phone. The deal was concluded on 17th March, which happened to be the day of purchase, in Barbados, by Richardson of the cocaine. Mr Gadsden questioned him about further evidence in the data not before the jury which showed that on the following day, 18th March, there was more telephone traffic between himself and T. The suggestion put to the appellant was that, if he had concluded a deal for the purchase of three ounces of cannabis on the 17th, he could not have consumed that quantity so quickly as to need to arrange a further supply on 18th March, which happened to be the morning when Richardson returned to the United Kingdom. The appellant's answer was that indeed he had not run through his supply, but it had been of such good quality that he was wanting to put in a speedy order for another supply.
10. Mr Gadsden also asked questions of the appellant about calls made from his phone to landline numbers in Barbados, during the period when Richardson was out there, which had not featured in the redacted schedule supplied to the jury. This went beyond that which the judge had permitted him to do. The judge while taking the view that it was legitimate to ask questions in cross-examination about the appellant's communications with the white phone and about whether he used the allegedly dirty phone for ordinary family use, had also made it clear that the prosecution should be careful not to treat that as a licence to open up other matters which could have been part of their case at the outset.
11. There came a time in the cross-examination when Mr Gadsden sought to cross-examine the appellant further about phone contact between his telephone and the phone of his niece early in the morning on which Mr Richardson returned to the United Kingdom. The relevance of that cross-examination was this. It was the appellant's case that the first he knew of Richardson coming back with any illegal drugs was when Richardson arrived at his home and told him what he had done. That being his case, Mr Gadsden wanted to ask him to explain why there had been phone calls or attempted phone calls to his niece early on the same morning. Mr Reid objected on the ground that if the prosecution wanted to include evidence of that kind as part of their case they ought to have done so from the outset. He drew the judge's attention to the appellant's defence statement in which he had said as follows:

"9. On 18th March, when Mr Richardson returned to this country, Mr Richardson asked whether he could come round for a cup of tea. When Mr Richardson arrived he told Mr Grocott that he had 'weed' in his luggage that he had brought back for others and that he wanted to keep it.

10. Mr Grocott told him that this was a crazy idea. Therefore Mr Grocott went with Mr Trepasso to another address to drop the suitcases off so that Mr Richardson could not do anything stupid with them. Mr Grocott had the key to the case because he had insisted that Mr Richardson give it to him."

So, submitted Mr Reid, there was nothing ex improviso about the evidence given by the appellant on this subject and it was unfair to seek to cross-examine him on the evidence about telephone contact between his phone and his niece's phone. If that was intended to be part of the prosecution case it should have been opened as such and the appellant could then have dealt with the matter in chief.

12. The judge took the view that the defence statement was imprecise about the arrangements made for moving the drugs on to the point that the prosecution could not be criticised for not having sought to introduce the evidence of phone contact with the appellant's niece as part of its case and that it was legitimate in the light of the appellant's evidence for the prosecution to cross-examine him on this. So it was that Mr Gadsden cross-examined the appellant about the phone records regarding the niece and was given the answer that he (the appellant) had not made any such phone calls. In relation to the Barbadian landline phone calls, the appellant's evidence was that he had no recollection what they were about.
13. The principal argument advanced attractively and cogently by Mr Reid in this court is that the judge was wrong to let in any of the pieces of cross-examination to which we have referred. Applying the rules about rebuttal evidence, it was for the prosecution to have included in the schedule all the telephone evidence about which they ultimately sought to cross-examine him and it was wrong for the prosecution to seek to improve their case and correct what may have been an oversight in their preparation by ambushing the appellant on these points in cross-examination.
14. It is right to remind ourselves of the fundamental principles which govern the adduction of evidence in this type of situation. The fundamental principles are that a defendant ought not to be ambushed and that the prosecution should, as a matter of general principle, present its entire case in one piece from the outset. Those are the fundamental principles which underlay the authorities to which we have been referred. Since then there have been developments, both in legislation and in court practice, to ensure a fair trial in which proper disclosure takes place in advance so as to avoid either side being caught unfairly by surprise. We now have detailed rules requiring the prosecution to disclose relevant material. We also have rules about defence statements and we have Criminal Procedure Rules, which stress the overriding objectives. The principles which underlay cases such as Scott and Pilcher are valid principles, but they have to be applied in the context of the additional procedures and protections which the courts now have and use.
15. In the present case we consider that the judge cannot be validly criticised for permitting the appellant to be asked questions about his use of the phone to call his wife and children. The prosecution had confined its schedule to those calls which appeared to have direct relevance to the conspiracy. That was perfectly understandable, but they also disclosed the full data so that the defendant knew what was there. The defendant sought to give the impression to the jury that he had used this phone regularly to phone his wife and children. That was untrue. Therefore the prosecution had no reason to foresee that he would make that misleading assertion and it was proper for the prosecution to be allowed to rebut it. Similarly, the prosecution had no reason to anticipate that the appellant would say what he did about the white phone and his dealings with his cannabis supplier "T". When that was advanced it was proper for the judge to permit the prosecution to probe that question by reference to other parts of the billing records, which after all related to the appellant's own phones and which had been served on him.
16. The cross-examination about calls to Barbadian landlines and the phone calls or attempted phone calls to the appellant's niece are more problematical. The questioning about the calls to the Barbadian landlines did not fall within that which the judge had permitted. In our judgment it was wrong. Mr Gadsden has candidly accepted in argument today that the prosecution had overlooked the potential relevance of those calls when preparing the schedule. There was in truth nothing in the appellant's evidence which caused them to have a relevance which they had not previously had, and there could be an unfairness to a defendant in introducing that evidence in order to try to brand him as a liar in the course of his cross-examination, thereby depriving the appellant of the opportunity of having dealt with that evidence in his own way in chief.
17. So far as the evidence relating to the phone calls to the niece are concerned, we consider that a fair reading of the defence statement does indicate that he was saying that he first learned of Richardson bringing back supposedly cannabis when Richardson arrived at his home and that made obviously relevant the question why there was contact between his phone and the niece's phone some hours earlier.
18. We do recognise that deciding whether or not something should be allowed to be put in cross-examination when the evidence of a defendant brings out some matter more clearly than the other party might earlier have appreciated, can be something of a grey area and that the judge is best placed, having the whole feel of the case, to determine what course accords with the overriding objective. This court will therefore be cautious before deciding that the judge was positively wrong to permit such questioning. We do not think that it is necessary to decide whether the judge was positively wrong to have allowed this cross-examination. We see considerable force in Mr Reid's argument that it should not have been permitted to be introduced in the way that it was, and we are prepared to assume that he is right on that. On that basis Mr Gadsden went too far in asking questions about the telephone calls to the Barbadian landlines and in asking the questions about the telephone contact with the appellant's niece.
19. That then brings us to the critical question, whether the convictions are safe. We fully recognise that one has to bear in mind the impact on a jury if matters are brought out in cross-examination, appearing to show that a witness is lying, when the witness has not had the opportunity of presenting his own case on the point in evidence-in-chief. This is a point not to be underestimated. However, this was a very strong case. The material about which the defendant was questioned was itself of undeniable authenticity - it was information from his phone records - and he was able to give the answers that he did, namely in relation to the Barbadian phone calls that he had no recollection what they were about and in relation to the phone calls to his niece that he did not make them. It is noteworthy that the judge made no reference at all to either of those matters in his summing-up to the jury. They were not in truth major parts of the prosecution's case and of course they were not in the schedule before the jury.
20. We bear in mind also the complaint made by Mr Reid about the form of the cross-examination. It took the form of assertions of fact by Mr Gadsden, rather than putting questions. This was a matter about which the judge intervened at one stage and he asked Mr Gadsden to put his questions differently. But we have to bear in mind also that the material that was being put to the appellant was correct, and his own counsel had the written material on which the questions were being put. So the questions, although put in the form of assertions of fact, were not put on an incorrect or unfair factual premise.
21. Standing back, we are left firmly of the view that the pieces of cross-examination which we are prepared to conclude for the purpose of argument ought not to have occurred did not on the facts of this case imperil the safety of the convictions. Bearing in mind that it is difficult for us to assess the atmosphere in the courtroom, nevertheless we reiterate that these were not in our judgment by any means major parts of the prosecution's case. The case as summarised in the judge's summing-up was of such strength that in our judgment justice does not require the conviction to be quashed on account of those matters.
22. Accordingly, this appeal is dismissed.