England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 February 2009

1. LORD JUSTICE SCOTT BAKER: I shall ask David Clarke J to give the first judgment.
2. MR JUSTICE DAVID CLARKE: This is an appeal by case stated by M, a young man born in May 1991, now 17 years of age, from his conviction in the West London Youth Court before District Judge Justin Philips for an offence of handling stolen goods, namely a mobile phone belonging to T. The issue before us is whether the district judge was right to find, when ruling on a submission of no case to answer and when convicting the appellant, that there was sufficient evidence that the mobile phone was stolen property and that the appellant knew or believed that to be the case.
3. The district judge initially refused to state a case on the ground that the questions in the case are questions of fact and raised no point of law, thus the application was frivolous in the sense defined in R v Mildenhall Magistrates [1997] 161 JP 401 in that it was misconceived. He took the view that if the appellant was aggrieved by his conviction his remedy was to appeal to the Crown Court. That refusal was reviewed by this court and the district judge was directed to state a case ([2008] EWCA 958 Admin).
4. The evidence for the prosecution, as summarised in the case stated, was as follows:

"T gave evidence in chief that he was the registered owner of the phone, the subject of the charge. He had bought it in or about October 2006 for his son, R, to use to enable him to keep in contact with home. It was for R's personal use, no one else's. It had cost about £189. Mr T identified his phone as the one in the police's possession when shown it in April 2007. In cross-examination, Mr T said R could have given the phone to a friend but did not and would not as he (R) knew the value of phones."

5. An admission was before the court pursuant to section 10 of the Criminal Justice Act 1967 that on 26 March 2007 at 3.30 pm, the appellant was stopped and searched by Police Constable Hunter in Holland Park Avenue near Ladbroke Terrace and he had in his possession the mobile phone which was the subject of the charge.
6. On paper, some doubt was raised as to whether the evidence of the police officer admitted before the magistrate went any further than that, so as to include the reply of the appellant to the officer to the effect that he had had the phone for months, but it appears that that is not the case and, accordingly, that piece of evidence was not part of the evidence before the district judge at the time of the submission of no case to answer.
7. At the close of the prosecution's case, reading on from paragraph 6 of the case stated:

"... it was submitted by the appellant that there was no case to answer as there was no evidence that the phone was stolen. I found that there was a case to answer as the circumstances were such that it could be inferred that the phone was stolen."

8. The issue bringing the case to this court arises from the fact that R was not called to give evidence, he having failed to attend. Indeed, it appears there had been an earlier adjournment of the trial arising from the absence of both father and son T from the court. The district judge was rightly not prepared to adjourn the trial again. We apprehend that the defence were ready to proceed and perhaps were anxious themselves to proceed to a resolution of the case. So the central question for the district judge and for us was whether in the absence of the evidence of R there was material capable of establishing that the mobile phone was stolen property when the appellant handled it.
9. In the case stated at paragraph 6, which I have just read, the district judge simply indicated his ruling that the circumstances were such that it could be inferred that it was stolen. He then recorded at some length in the case stated the evidence given by the appellant, which is rightly submitted to us not to be material which he could take into account when considering the half-time submission and which this court should not take into account when considering whether that submission was rightly rejected. Be that as it may, the appellant's evidence was, in brief summary, that he had bought the phone for £60 from an unknown boy. He thought it a fair price because he thought that this phone would have been worth about £120 when new. It did not have a box or a charger. He already had a charger.
10. The district judge concluded the case stated as follows, reading from paragraph 8:

"At the close of the case, the appellant again contended that there was no evidence that the phone was stolen. I relied upon the case of R v Fuschillo (1940) 2 All ER 489 and found that the circumstances in which the appellant came to be in possession of the phone were such that an inference could be drawn that the phone was stolen and that the appellant knew or believed it to be. The appellant also made submissions that I could not be sure that the appellant was dishonest and/or knew or believed the phone to be stolen due to the circumstances in which the phone had been sold to him.

I decided that the phone was stolen as the undisputed evidence before me was that T was the owner of the mobile phone. The evidence given was that T had given the mobile phone to his son R for the purpose of keeping in contact with his home. I found that there was no evidence that R would let the others borrow or use it and even if he did let the others use it or borrow it any sale wholly denied the T's ownership. In any event I did not believe that R had sold or given away the mobile phone and an inference could be drawn that the phone was stolen.

9. I also decided that the appellant knew or believed it to be stolen because of the circumstances in which the phone had been sold to him; in particular:

• He did not know the name of the seller who was a complete stranger and a boy of about his age

• No questions asked by the appellant about the provenance of the phone

• There was no charger for the phone nor a box

• The SIM card was still in the phone

• The seller was wearing a hoodie over his school uniform

• The sale was in the street and the phone was sold for approximately one-half of its retail value.

I concluded that I had no doubt that the appellant knew he was purchasing stolen property and convicted the appellant.

The question for the opinion of the High Court is whether there was sufficient evidence for me to a) find that the mobile phone was stolen and b) that the appellant knew or believed it to be stolen."

11. I accept the submission that we must consider the half-time submission point as a discrete point, based on the evidence as it stood at that time, even though the matter is not specifically split in that way in the case stated. But part of that reasoning must be taken as the reasoning for the rejection of the half-time submission in so far as the district judge is referring to the evidence given by Mr T. His task, having heard the evidence of that witness and the other evidence for the Crown, (which took the matter no further) was the equivalent of that of a Crown Court Judge deciding whether a case is fit to go before the jury. It is implicit from the judge's eventual acceptance of Mr T's evidence that at the half-time stage he regarded it as evidence capable of being accepted.
12. The first point taken is that Mr T's evidence that R would not have sold or given the phone away was opinion evidence and was inadmissible because it was opinion rather than evidence of fact. An implication from the way in which the matter was put in the skeleton argument was that only an expert could give opinion evidence. Mr Southey disarmingly agrees that he was not suggesting that an expert should have been called for such a purpose. I would reject any submission that the evidence was inadmissible. It was evidence of a father given about his own son. It was factual evidence about his son's character and, in my judgment, the fact that he expressed an opinion as to what his son would or would not have done does not render it admissible. It is evidence that the judge was entitled to accept.
13. It is then pointed out that Mr T agreed, as recorded by the district judge, that his son could have given the phone away and it is argued from that that there was no evidence capable of establishing that he did not. I would reject this too. In my view Mr T was doing no more when those questions were put to him than to accept a theoretical possibility, because of course the phone was in his son's possession and had been put there by him, the father. But Mr T was at the same time, entirely admissibly in my view, asserting the reality of the situation, namely that he would not have done so. It is then developed orally before us that that only covered the question of giving the phone away, rather than the possibility that R might have sold the phone, and it is urged upon us that parents do not always know what their children do or conversely that children sometimes do things that their parents do not wish them to do. In my view, the argument is more theoretical than real. The learned judge was entitled to find, on considering Mr T's evidence, that this did not happen; that R had neither given nor sold the phone away.
14. That conclusion, in my view, also applies to the next point taken which led to some interesting discussion in the course of argument and on which I was initially attracted by some of Mr Southey's submissions, namely whether R's absence from court deprived the appellant of the opportunity of seeing whether he was, in fact, the unknown boy from whom he was saying that he bought the phone. But once I hold, as I do, that the learned judge was entitled to accept that R did not either give or sell the phone away, that point is, in my view, itself answered. That argument, if it had validity and if it had been thought of at the time, might have given rise to an argument for abuse of process on the ground that it rendered the trial of the appellant unfair, but no such point was taken. If it had been it might arguably have led to the further adjournment which the Crown were asking for. At all events, the trial proceeded as it did. In my view there was sufficient evidence to entitle the judge to find at the half-time stage, and then when further evidence had been given by the defendant at the conclusion of the case, that the evidence did suffice to justify the case going forward and eventually being found proved. The judge was entitled to infer that the boy who passed it to the appellant, if that is how it came into the appellant's position, was already in unlawful possession of the phone because it had been previously stolen from R by him or somebody else.
15. As to the secondary submission that there was no evidence that the appellant knew or believed the phone to be stolen goods, it is well established from old authority that the court may draw such an inference from the circumstances: Fuschillo is no more of an example of that principle. The district judge set out, in the passage that I have read, the factors that he took into account, but perhaps the most important of them was that this was a telephone which still contained its SIM card. This tends to support the view that this was stolen property and to support the Crown's assertions as regards knowledge or belief. In my view those reasons were unexceptionable and I would therefore dismiss the appeal.
16. LORD JUSTICE SCOTT BAKER: I agree. Accordingly, the question posed will be answered in the affirmative.
17. MR SOUTHEY: My Lord, can I raise two minor matters? One, the representation order granted by Collins J did not cover the attendance by my instructing solicitor today, it only covered it in the past. In light of some of the points that were made by my learned friend in the skeleton argument about some of the things that have happened which were not recorded in the case stated and in light of some of the things that have occurred today it has been of great assistance to me to have my instructing solicitor, who was the advocate for the proceedings and so I would ask if the representation order could be amended to allow my instructing solicitor to be paid for attendance today?
18. LORD JUSTICE SCOTT BAKER: Yes.
19. MR SOUTHEY: My Lord, the second point that I should make, which I perhaps should have made at the start, is that given the appellant's age there should be a reporting restriction and he should not be identified by name.
20. LORD JUSTICE SCOTT BAKER: Yes, that is already on the papers and that should continue.
21. MR SOUTHEY: Yes, I just raise it again. Thank you.
22. MISS STEVENS: My Lord, may I simply raise -- now the appeal has been dismissed I am instructed to apply for costs, this matter having come to this court.
23. LORD JUSTICE SCOTT BAKER: It is not going to do you much good, is it?
24. MISS STEVENS: I suspect not, but I make the application.
25. LORD JUSTICE SCOTT BAKER: No order is probably the appropriate order.
26. MISS STEVENS: I am grateful.