England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		24 July 2018

LORD JUSTICE SIMON:

1. On 4th November 2016 in the Crown Court at Liverpool the appellant was convicted at the conclusion of a trial before Mr Recorder Turner and a jury of possessing a Class A controlled drug, heroin, with intent to supply (count 1). Five months prior to the trial, on 30th June 2016 he had pleaded guilty to supplying a controlled drug of Class B, cannabis (count 2). In addition, on 2nd June 2016 he had pleaded guilty before the magistrates to a single offence of producing a Class B drug, cannabis, and had been committed for sentence to the Crown Court under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000.
2. It was in respect of these three offences that the appellant was sentenced at the conclusion of the trial on 4th November to terms of imprisonment of six years on count 1, three years concurrent on each of count 2 and the committal offence. He appeals against his conviction on count 1 with the leave of the single judge.
3. The charge on count 1 arose from the execution of a search warrant on 19th February 2015 at 17 Barchester Drive, Liverpool. This was the home address of a man called Ian Pauline. During the course of the search, a number of items were seized, including two plastic bags containing brown powder which had been hidden behind the kitchen units, as well as electronic weighing scales containing traces of cocaine, two money counting machines, latex gloves and £1,410 in cash.
4. One of the packages was found to contain 33 gms of heroin at a purity of 47%. The second package contained further bags of heroin, with a total weight of 378 gms of heroin and a purity of 48%. The street value of the heroin was estimated at between £24,000 and £41,000. The wrapping was analysed and the appellant's fingerprint was found on it in circumstances to which we will come later.
5. On 16th September police attended the appellant's address in Lowell Street, Liverpool. Four cannabis plants were found in the kitchen and two of the rooms had been converted to grow cannabis: with reflective hoods, heaters, lighting units and transformers; and the electricity meter had been bypassed. The estimated yield was nearly 2 kgs of cannabis with a potential street value of between £19,000 and £30,000. Police also seized weighing scales, £1,600 in cash, several large bags of cannabis, worth approximately £5,000, and an iPhone. Those offences were charged as count 2 on the indictment and the committal offence.
6. The iPhone was analysed. No link was found between the appellant and Ian Pauline. However, three text messages, all received on the phone on 25th August, were recovered from it. One of these read, in what the Recorder described as the local demotic:

Lad, fucking ring me asap, these both been fucking opened, been taped back up. You're a fucking cheeky twat lad and I already paid for them. You hard faced twat lad. The first one is 55 down and he just doing the next one now, that gonna do down as well. I fucking knew it, wit yu giving people buds out of my weed lad, fucking wanker, and they been both opened, you fucking cheeky twat you lad.

7. The prosecution case was that the appellant's fingerprint was on the packaging of the heroin because at some stage he had the package in his possession and when he handled the package he knew that the drugs were to be supplied.
8. In relation to the fingerprint, the prosecution called an expert, Gareth Wyn-Williams, a fingerprint analyst. He gave evidence that the fingerprint identified on the wrapping found at Barchester Drive was the appellant's. The wrapping consisted of strips of brown packaging tape over a yellow electrical tape. The fingerprint was found just below the label on the yellow tape and was a left ring finger in a vertical position. The electrical tape had been used in a number of places and the piece of tape with the fingerprint on was 20 cms in length and about a third of the way down. There was a single print, but it was a good quality print. It was unusual for drugs to be packaged using electrical tape but he had seen it before.
9. In addition to this evidence, the prosecution relied on the text messages found on the appellant's phone relating to the packaging of cannabis, and bad character evidence relating to the two cannabis offences, to show that he was involved in dealing drugs in a sophisticated operation.
10. Following a ruling (to which we will come shortly) the appellant gave evidence in his own defence that he did not know Ian Pauline, had never been to Barchester Drive and did not package the heroin. He had used tape a lot when he used to work in asbestos removal and had completed a rewire of a friend's house, but he did not recall using a tape like the yellow electrical tape his fingerprint was found on.
11. He had moved into the address at Lowell Street in April 2015. The house belonged to a friend, whom he did not want to name. He accepted growing cannabis at the house with this friend. He said his friend set up the operation and would visit every two weeks; and that he was the gardener and lived in the house rent free. The money found in the house was his from betting. The cannabis found in the sack belonged to his friend and arrived before the text messages on 25th August.
12. He said his friend called him and told him that some cannabis was being dropped off on 21st August. A male came to the property and dropped off three bags, which were in one big bag. He said another male then arrived to pick it up and that male left one bag of cannabis.
13. On 25th August he had received the three text messages. He read them and responded that he had not opened any of the cannabis bags. If someone had opened the packages, it was not him.
14. The issue for the jury was whether the appellant had knowingly been in possession of the package of drugs and knew they were to be supplied.
15. At a relatively early stage in what was a short trial, the prosecution applied to admit the appellant's convictions for the cannabis offences committed after the discovery of the heroin at Barchester Drive.
16. In his ruling the Recorder set out the facts as we have described them. He noted that in interview the appellant said he could not account for his fingerprints on the tape binding on the packaging of the heroin. He noted that the prosecution relied on the text messages. The Recorder went on (at volume 1-page 3D-E):

This propensity is relevant to the fingerprint appearing on the heroin packaging and represents important explanatory evidence when considering his denial in interview. A jury would be wholly misled ... if a single fingerprint appeared in a vacuum without knowledge of his wider involvement in the drug trade. Furthermore, [the prosecution] says the text messages ... are highly probative, because they relate to packaging of wholesale packages of controlled drugs, and that is particularly relevant here...

17. The Recorder allowed the prosecution application.
18. The grounds of appeal advanced today by Mr Wood, in a closely argued and focused series of submissions, do not challenge the admission of the bad character evidence as such. The complaint is that the text messages were not dealt with as hearsay evidence and that the jury was not properly directed in relation to them.
19. The first question that arises on this appeal is whether the contents of the text messages were hearsay. The Recorder did not consider this question in any detail. He seems to have accepted the prosecution position that they were not.
20. Mr Wood submits that they were hearsay. He refers to R v Twist [2011] EWCA Crim 1143 at paragraph 17 and the enquiry that the court should undertake: (i), what is the relevant matter that it is sought to prove; (ii), if there is a statement of that matter in the communication, was it one of the purposes of the maker of the communication that the recipient should believe it or act on it?
21. In our view it is clear that, first, the relevant matter that the texts were relied on to prove was that the appellant had interfered in the packaging of cannabis and, secondly, it was the purpose of the sender that the appellant should react to it, which it appears he did. The prosecution was relying on the contents of the text being true and not simply on the fact that a complaint had been made. The maker of the complaint intended the appellant to believe he had stolen drugs from a package and then packaged it up again, to which the appellant said he responded.
22. Once the court reached the conclusion that the contents were hearsay, it had to consider the next question: whether the text messages were anonymous.
23. In the present case the appellant knew who had sent the messages, so the next question was whether it was in the interests of justice to admit the text (see section 114(1)(d) of the Criminal Justice Act 2003).
24. The provisions of section 114(2)(a)-(i) set out the statutory criteria to be applied in deciding that question.
25. In our view the text messages were rightly admitted by the Recorder.
26. Mr Wood invited the Recorder to give a general direction about the caution to be taken in relation to the text messages and particularly as the jury had not heard from the sender of the texts. It seems that prosecution counsel - not Mr Walsh, who appears today on this appeal for the prosecution - maintained the argument that the texts were not hearsay. In any event the Recorder referred to the text messages in this way (at volume 2 page 7):

... you decide this case only on the evidence which is being placed before you, in other words the admissions, the evidence of the fingerprint expert and the defendant. There will be no more evidence. Do not speculate about what evidence there might have been, or allow yourself to be drawn into speculation. After all, the defendant knows perfectly well, he says, who sent the text messages because he was the man, he calls him his mate, who he was in the drugs business with and they were very close. Perhaps not surprisingly he has not come to court to give evidence but let us not worry about it, about witnesses there might have been, just deal with the evidence you have got, okay.

27. He returned again to the text messages later in summing up at page 12, having set out the text message to which we have already referred:

"And the prosecution say, you were receiving a message about taped, that obviously a package had been taped and you received that message, and the defendant agreed he had but he said it was all nonsense."

28. Mr Wood submits that this was unsatisfactory. At the very least, the Recorder should have drawn the jury's attention to the fact that the statements had been not been verified on oath, nor its maker's evidence tested in cross-examination, and of the risks of relying on a statement from someone the jury had not seen and, in the circumstances, the importance of scrutinising such evidence with care. He also submitted that it was important evidence because the defendant was cross-examined about it and the third text suggested someone else was involved.
29. This was a matter that Mr Wood raised in his final speech, but he submits that it should have been summed up by the judge, in view of the suggestion was not that it was the appellant who had been interfering with the cannabis packaging but someone else.
30. Mr Wood goes on to submit that, in the light of these deficiencies, the conviction cannot be safe. They were different enterprises, the cannabis and heroin offences; the offending was in different areas of Liverpool; and there was six months between them.
31. Mr Walsh submits that the need for special caution was reduced since the appellant accepted that he knew the person who had sent the messages. The appellant accepted that he was involved in the supply of cannabis, as reflected in the messages, and that the packages of cannabis referred to in the texts had been in his possession. It was not, Mr Walsh submitted, a case for a conventional hearsay direction and what the Recorder said was sufficient.
32. In our view the jury should have been cautioned in conventional (although modified) terms in relation to the contents of the text messages. That direction on the hearsay aspect of the evidence was not given and should have been.
33. The question then is whether the conviction is safe. In our view it is. In addition to the messaging, in respect of which the modified direction should have been given, the prosecution was able to rely on the fingerprint on the heroin packaging and the particular position in which it was found, where a fingerprint might have been left in the course of packaging. The fingerprint overlapped part of another part of the packaging with a print which could not be identified, but the print had been left with the left ring fingerprint and the appellant was right handed. Therefore, Mr Walsh submits, it suggested a pressing down as part of a packaging. In addition, and in any event, there was the properly admitted evidence of bad character.
34. In our view the evidence of the text messages was properly before the jury and such deficiencies in the directions that we have identified were not, in the circumstances of this case, such as to render the verdict unsafe. Accordingly, the appeal is dismissed.