England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd January 2014

Lord Justice Jackson :

1. This judgment is in four parts, namely:

Part 1. Introduction,

Part 2. The facts,

Part 3. The criminal proceedings,

Part 4. The application for leave to appeal to the Court of Appeal.

Part 1. Introduction

2. This is an application for leave to appeal against conviction. There are two issues in this application. The first issue is whether it is arguable that the judge failed adequately to sum up the defence case. The second issue is whether the applicant should have leave to adduce fresh evidence from two witnesses resident in Nigeria.
3. Only one statutory provision is relevant to this application. That is section 23 of the Criminal Appeal Act 1968 (to which we shall refer as "the 1968 Act"). Section 23 (1) of the 1968 Act enables the Court of Appeal to receive fresh evidence which was not adduced at the original trial. Section 23 (2) of the 1968 Act provides:

"(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to -

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

4. After these introductory remarks, we must now turn to the facts.
Part 2. The facts

5. On 4th July 2011 the applicant was driving a Lexus car along Southampton Way, London SE5. Police officers stopped the car and searched it. During that search the police found the following items: a wrap containing 5.11 grams of cocaine at 68% purity; a wrap containing 2.7 grams of phenacetin; a pot of bicarbonate of soda; a white carrier bag containing £10,000 in cash; an envelope containing £7,000 in cash; a wallet containing £560; and a set of electronic scales.
6. Unsurprisingly in view of that combination of findings, the police concluded that the applicant held the cocaine as a drug dealer, rather than an user, and that the cash constituted the proceeds of drug dealing. Accordingly, they arrested the applicant on suspicion of possessing Class A drugs with intent to supply and money laundering.
7. On the following day police officers interviewed the applicant at Walworth Police Station. The applicant said that he had bought the 5 grams of cocaine for his own use. He said that the £17,000 in cash had been provided to him from Nigeria for the purpose of buying horse tranquiliser. He was going to ship this to Dan Amos, his client in Nigeria.
8. The police officers did not believe the account which the applicant gave. Accordingly, criminal proceedings followed.
Part 3. The criminal proceedings

9. The applicant was charged on an indictment containing two counts. Count 1 charged the applicant with possessing a controlled drug of Class A with intent to supply contrary to section 5 (3) of the Misuse of Drugs Act 1971. The drug referred to in count 1 was of course the 5.11 grams of cocaine found when the police officers searched the applicant's car. Count 2 charged the applicant with possessing criminal property contrary to section 329 (1) (c) of the Proceeds of Crime Act 2002. The criminal property referred to in count 2 was the sum of £17,560 found in the applicant's car, which the prosecution asserted were the proceeds of drug dealing.
10. The applicant pleaded not guilty to both counts. In November 2011 the applicant stood trial at Inner London Crown Court before His Honour Judge Burn and a jury. The prosecution called evidence of what happened when the police stopped and searched the applicant's car. The items found in that car were not in dispute. The prosecution also called expert evidence from a police officer who had specialist knowledge and experience of how drug dealers operated in the UK. He said that it was very unusual for cocaine of 68% purity to be sold at street level. There were two reasons for this. First, cocaine of that purity could be harmful to the user. Secondly, it would be far more profitable for the dealer to mix the cocaine up with other substances and then sell a larger quantity. If the 5.11 grams of cocaine found in the applicant's car were cut down and sold at street level, it could be sold for well over £2,000.
11. A number of facts were agreed between the prosecution and the defence for the purposes of the trial. These included the following:

i) Phenacetin was used as a painkiller and fever reducing drug in both human and veterinary medicine for many years. Due, however, to its carcinogenic and kidney damaging properties, it is no longer licensed as a treatment in the UK.

ii) Phenacetin is not a tranquiliser. The most common form of tranquiliser seen by LGC is ketamine.

iii) To make crack cocaine one dissolves powdered cocaine in a mixture of water and ammonia or sodium bicarbonate. The mixture is then boiled and the resulting solid is crack cocaine.

12. The statement of agreed facts then set out details of seizures of crack cocaine during 2010 and 2011. The essence of those paragraphs is that in the vast majority of cases all finds of crack cocaine have been found to contain phenacetin.
13. The applicant gave evidence in his own defence. He said that he and a colleague in Nigeria were planning to set up a McDonald's franchise in the UK. They would need capital of £80,000 for this enterprise. They could borrow £60,000 from McDonald's or a bank, but needed to put in £20,000 of their own money. A Nigerian colleague had sent £17,000 to the applicant for this purpose. The applicant intended to convert the £17,000 to £20,000 by the expedient of buying horse tranquiliser and re-selling it at a profit. Inevitably, the applicant elaborated that account with many matters of detail.
14. Prosecution counsel made the point at trial that the applicant had not in his interview said anything about the planned McDonald's enterprise. He invited the jury to conclude that this was a subsequent fabrication.
15. The applicant did not call any witnesses to support his defence. He did not call anyone from McDonald's to confirm his account of discussions which he had been having with McDonald's. He did not call any witness to confirm his account of dealings with phenacetin or how the £17,000 had arrived in his possession.
16. The evidence was all concluded in the space of one day, namely Tuesday 15th November 2011. On the Wednesday morning counsel made their closing speeches. The judge then proceeded to sum up. After the judge's summing-up the jury retired. In due course they convicted the applicant on both counts. The verdict on count 1 was unanimous. The verdict on count 2 was a majority verdict, with 11 agreeing and one dissenting. The judge then sentenced the applicant to seven years imprisonment on count 1 and five years imprisonment on count 2. He ordered those two sentences to be concurrent. Thus the total prison sentence was one of seven years.
17. The applicant is aggrieved by his conviction. Accordingly, he has applied out of time for leave to appeal against conviction.
Part 4. The application for leave to appeal to the Court of Appeal

18. The application for leave to appeal is based upon two grounds: the first ground is that the judge failed adequately to sum up the defence case; the second ground is that fresh evidence is available from two witnesses which indicates that the conviction is unsafe.
19. The application for leave to appeal was considered on the papers by the single judge. He refused leave on the first ground and he referred the second ground to the full court, so that the court could hear what the prosecution had to say about the proposed fresh evidence.
20. The applicant, undaunted by the views of the single judge, today renews his application for leave to appeal against conviction on ground 1 and pursues his application for leave to appeal and to call fresh evidence on ground 2.
21. Miss Nnamani appears for the applicant today. She was not counsel at trial. She is critical of the way the defence was conducted at trial in a number of respects. She has not, however, troubled to speak to counsel who represented the applicant at trial.
22. So far as the fist ground of appeal is concerned, the essence of Miss Nnamani's case is that the judge failed adequately to sum up the evidence which the applicant gave at trial.
23. Unfortunately, Miss Nnamani comes before this court without any note or transcript of what the applicant said at trial. She simply produces the summing-up. The summing-up is normally (unless challenged by reference to a transcript of evidence) taken to be an accurate summary of the evidence which was given.
24. It is quite impossible to pursue an appeal on the ground that the judge failed adequately to summarise the evidence of a witness without producing either a transcript or, at the very least, an accurate note of what that witness said. Quite how Miss Nnamani would have pursued the application today if the prosecution were not here we simply do not know. Be that as it may, Mr Bleaney, who was prosecution counsel at trial, represents the respondent on this appeal today. Mr Bleaney has very helpfully read out his note of the evidence given by the applicant at trial.
25. It seems to us, in the round, that the judge's summing-up is a very fair and reasonable summary of what the applicant said in his evidence. The judge does not need to give a full recitation of the evidence. It should be remembered that this was a short trial. The jury had heard the evidence of the police officers and of the applicant the day before. It was quite sufficient for them to be reminded of the gist of what the applicant had said.
26. Miss Nnamani, having sat down whilst prosecuting counsel assisted by reading out his note of the evidence, then developed three criticisms of the summing-up. Her first point was that in a number of places the judge said "fertiliser" when he should have said "tranquiliser". That was clearly a slip. The judge did not make that slip on every occasion. We can see at least one instance in the summing-up when the judge said "tranquiliser". It is obvious that no-one was misled by the use of the word "fertiliser" rather than "tranquiliser". The jury, for one thing, had a copy of the police interview with the defendant which contained many references to horse tranquiliser. Furthermore, the applicant had been talking about horse tranquiliser in his evidence. The slip of the tongue by the judge can have misled no-one. Mr Bleaney tells us that because it was obviously a slip of the tongue he did not trouble to correct that which the jury must clearly have understood. There is no record of defence counsel having risen to ask the judge to correct his slip of the tongue. The inference must be that he was satisfied that no-one was misled either.
27. Miss Nnamani today stresses the importance of getting this right and the need for clarity. She has not, however, troubled to speak to trial counsel to ascertain why he did not make that correction. We are bound to say that we regard this point as unarguable.
28. The second point raised by Miss Nnamani is that the judge failed correctly, on page 13 of the summing-up, to summarise the evidence relating to Mr Blaise.
29. It seems to us that on that page the judge gets the gist of it right. The applicant did indeed say that he met Mr Blaise in a pub, they were watching football and there was discussion about obtaining horse fertiliser. That fits exactly with what the applicant said in evidence, as we now know having heard Mr Bleaney's recitation of that evidence from his notebook. There is a very slight slip in the summing-up in that the applicant asserts that the idea of purchasing horse fertiliser first came from Mr Esiri, not Mr Blaise. But, with the utmost respect to counsel, we regard this as a trivial point of no consequence in the case.
30. Miss Nnamani's third criticism of the summing-up is that the judge said on page 13 that the applicant had said he needed to make up a shortfall of £3,000, but the judge did not explain how that shortfall figure was calculated. This is a point which defence counsel, Mr Cassie, noted at trial. After the end of the summing-up, in the absence of the jury, he asked the judge to correct it. The judge did provide a brief correction, which we see at page 20 of the summing-up.
31. Miss Nnamani submits that that correction was insufficiently clear and detailed. We do not agree. It seems to us that the judge dealt with the point concisely, but sufficiently. Furthermore, as we say, this was a very short trial. We do not think that the jury were misled about that.
32. In the result therefore, in entire agreement with the single judge, we reject the first proposed ground of appeal. There should be no question of leave being given to appeal on that basis.
33. We turn now to the second ground of appeal. Here the proposition is that evidence to be given by Mr Dan Amos, a Nigerian citizen, and Mrs Kanu, the applicant's wife, should now be admitted; this evidence would support the defence case and the court should receive it pursuant to section 23 of the 1968 Act.
34. So far as Mr Amos is concerned, the application is distinctly unpromising for many reasons. First, Miss Nnamani tells us that Mr Amos has now relocated to Australia. Her solicitors have been unable to make any contact with him. Furthermore, when we look at his witness statement, if it is true, it appears from that statement that at the time of the original trial he was contacted by the police to see if he was going to give evidence or not, but there is no reference to him having been contacted by the defence team. There was probably a very good reason for this. There were inconsistencies between the assertions in Mr Amos' statement and the contents of the defence case statement. Also there was an obvious risk that the cross-examination of Mr Amos may have done much damage to the defence case.
35. Miss Nnamani very candidly says that even if leave to appeal is given, she cannot now assert to this court that Mr Amos will come and give evidence to this court. Mr Amos says that he was unwilling to come before because the police had led him to believe that he might be charged with drug offences in this country. If that was the case before, we see no reason why, even if he is contacted, he should be willing to come to this country now.
36. In our view, the reality is that a tactical decision was taken not to call Mr Amos at the original trial. The applicant is now seeking to have his cake and eat it, by obtaining a re-trial in which he can call Mr Amos to see if he does any better by that approach.
37. We turn now to Mrs Kanu. She has provided a short witness statement, the material part of which reads:

"... I was duly issued with Original copy of receipt in respect of £7,000 ...

... the said document was issued to me by Forward marketing communication Ltd. Bureau de Change."

Then she annexes a copy of it and we can see the copy of a receipt for £7,000.

38. The difficulty which arises in relation to Mrs Kanu is this: what she says is inconsistent with the defence case statement. The defence case statement asserts that the applicant received the payment of £7,000 from another associate of his in the UK (see paragraph 7). So if the wife had given evidence, there would have been a clear inconsistency in that aspect of the defence case.
39. It is also instructive to look at the reasons put forward for not calling the wife at the original trial. They read as follows:

"Witness was in Nigeria at the time. Appellant did not call her as a witness as he felt no need to involve her in the case."

In other words, a tactical decision was taken not to call the wife as a witness. The applicant has been convicted. Now he wants a re-trial, in order that he can proceed on a different basis and see if evidence from his wife will be of assistance.

40. In addition to all those points, Miss Nnamani tells us that there are visa difficulties in Mrs Kanu coming to this country and it may not be possible for her to come here in any event. Also, according to her solicitors, there are no facilities for taking evidence by video-link from Nigeria. We have not found it necessary to investigate that aspect.
41. In our view, this application to adduce fresh evidence fails by a very wide margin to satisfy the requirements of section 23 of the 1968 Act. Accordingly, we refuse the application to adduce fresh evidence and we refuse leave to appeal on the second ground.
42. This application before the court today is typical of many which are brought. The defendant makes various tactical decisions at trial. The defendant is convicted. After conviction the defendant changes his legal representatives in order to appeal and hopefully to present his case on an entirely different basis. He is seeking to get the best of both worlds, or to have his cake and eat it. It must be understood that tactical decisions are made at trial once only. Those decisions cannot be re-opened, save in exceptional circumstances. The defendant cannot repent of those tactical decisions and then get a new re-trial in which he can pursue a different line of defence.
43. What has happened today, as happens in a number of cases, is that new counsel come along. They make criticisms, express or implied, of trial counsel. They do not trouble to speak to trial counsel to see whether those criticisms are justified. They do not come equipped with proper factual information as to what happened at the original trial.
44. In our view, the applicant in this case is pursuing an application for leave to appeal which is wholly without merit. The only issue is whether the applicant should now suffer some loss of time, and on that issue we will hear counsel. (Counsel then made submissions on the issue of loss of time. The Bench retired for a short time to consider those submissions.)
45. LORD JUSTICE JACKSON: Pursuant to section 29 of the Criminal Appeal Act 1968, we direct that six weeks of the time which the applicant has spent in custody awaiting the hearing of this application shall not count towards his sentence.
46. Section 29(2) of the Act requires us to state reasons. Our reasons are as follows. The first proposed ground of appeal is completely without merit for the reasons stated by the single judge. The application to appeal on that ground should not have been renewed. The second proposed ground of appeal is hopeless. It is an application to adduce fresh evidence from two witnesses. One of those witnesses is apparently untraceable and very unlikely to attend, even if he is permitted to do so. The evidence of both the witnesses contains inconsistencies with the defence case. The decision not to call those witnesses at trial was clearly a tactical decision. Indeed, this is confirmed in the notice of application in relation to one of those witnesses. There is not and never was any realistic prospect that the Court of Appeal would allow that tactical decision to be re-opened.