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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Robinson v R. [2005] EWCA Crim 3233 (14 December 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/3233.html Cite as: [2005] EWCA Crim 3233 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Moss QC
Central Criminal Court T20037584
Strand, London, WC2A 2LL |
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B e f o r e :
THE HONOURABLE MR JUSTICE HOLMAN
and
THE HONOURABLE MR JUSTICE FULFORD
____________________
DENNIS ROBINSON |
Appellant |
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- and - |
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THE CROWN |
Respondent |
____________________
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss S O'Neill QC and Mr M F R Holland for The Crown
____________________
Crown Copyright ©
LORD JUSTICE HOOPER :
i) The presence of a Stanley knife and holder and a 35cm knife from the appellant's bedroom, coupled with cross-examination about the knife (31G and 78B);
ii) The presence of a club or lump hammer from the appellant's kitchen was similarly elicited (32A);
iii) The appellant's fingerprints were identified on the magazine of a firearm which was found by the police in Husbands' home (34E-35A);
iv) When Garcia Muir and Carey Bent were cross-examined by Maitland's counsel, they gave challenged evidence about the appellant's violence towards her (39A-F; 54D-G);
v) Maitland gave challenged evidence that the appellant beat her with a belt, slippers and fists (100D; 108E-F);
vi) Maitland said that he had kicked her whilst she was pregnant and that she had suffered a miscarriage and this was challenged (80A);
vii) Maitland gave evidence that the appellant had allowed his friend Kevin to use her sexually (101B-E);
viii) Details of the appellant's rape conviction were adduced in evidence (80E; 92F));
ix) Maitland gave evidence that the appellant told her that he had killed before (102D).
"How do you approach that conflict? You should examine their evidence with particular care because each, in saying what they do, may be more concerned about protecting themselves than speaking the truth and that is an aspect which you should bear in mind, but you must also remember the following:
First, that you must, as I directed you, consider the case for and against each defendant quite separately.
Second: that you must decide the case of each defendant on all the evidence, including that of the co-defendant.
Third: that while bearing in mind when considering the evidence of each defendant that they may have an interest to serve, nevertheless you must assess the evidence of each of them in the same way as any other witness in the case." (Underlining added)
"What is the relevance of the defendant's previous convictions in this case? The only reason that you have heard them is so that you may have knowledge of the character of the defendant who has made this attack, because it may assist you to judge the truthfulness of his evidence when you come to consider this matter. What you must not do is automatically assume that he is guilty or that he is not telling the truth, just because he has previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence and nor are they evidence that he committed the offence to which he is now on trial. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment at all and it is for you to decide the extent to which, if at all, his previous convictions help you about that."
"Is there any matter of law which any of learned counsel want to raise with me at this stage, following my directions on the law?'"
"For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries."
"… the relevance of any previous violence or aggressiveness on other occasions is not to prove: 'Well, he did it or he said it before, so he must have done it on the 12th and 13th November'; its relevance is to provide you with as complete a picture as possible of what manner of man you are trying"
"13. The appeal centres on the fact that Billia had a previous conviction. The appellant relied on his own good character. It was he who introduced into evidence the fact that, as he said, Billia was the more likely perpetrator of this murder given his bad character. In particular he relied on and called evidence about Billia's previous conviction after a murder trial at the Central Criminal Court, when Billia was convicted of manslaughter in 1993 of a man called John Fanning, a homosexual companion of Billia's, in circumstances that in some respects bore some resemblance to the facts of the present case. "
"... Mr Billia's previous conviction for the manslaughter of John Fanning. I am going to ask you to be very careful how you will use the evidence about this, and I am going to suggest that you treat it quite differently when you are considering the prosecution's case against Mr Billia himself and when you are considering the prosecution's case against Mr Mertens. When you are considering the prosecution's case against Mr Billia, I suggest you disregard it altogether. It does not form part of the prosecution's case against Mr Billia at all. Mr Ferguson asked yesterday in his final speech, rhetorically, 'Why have the prosecution not called the evidence about the killing of John Fanning? Why was it Mr Mertens' team who did that? There is a very simple answer to that question. The prosecution could not have called that evidence themselves. It simply is not admissible or relevant evidence to support the prosecution's case." (Underlining added)
"69. We have been troubled about the extent and relevance of paragraph 35 of Randall. Paragraph 35 includes this:
'For the avoidance of doubt I would further add that in my view where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused…'
If one emphasises the word "relevant", it is to be recalled that Lord Steyn had an extended passage on the subject of relevance and that relevance was discussed in the context of similar fact evidence. As Mr Waters [counsel for the respondent] submits, in the case against a single defendant propensity will never be relevant and admissible unless the facts going to propensity can be elevated to being admissible similar fact evidence. Accordingly, where evidence of propensity of a co-accused is relevant, it may perhaps be read as referring to relevance because the evidence is admissible as similar fact evidence"
"70. If, however, we were not sure that that is the correct interpretation in the context of this case of paragraph 35, we nevertheless have to consider that this judge was faced with having to sum the case up fairly as between both defendants. We accept the submission of Mr Waters that, in the circumstances of this case, he could not have directed the jury that Billia's conviction was relevantly probative in the case against Billia. He could not do that because it was accepted not to be admissible similar fact evidence in his case. So far as the case of Mr Mertens, the appellant, was concerned, this was evidence that Mr Mertens was entitled to rely upon. In substance the judge said as much on page 47 of volume 3 and page 16 of volume 4, where he gave what we read as a clear propensity direction. Judges have to tailor their summing-ups to the circumstances of individual cases. They have to be fair to each or every defendant before the court. In the present case, in our judgment, this judge did just that, and summing up the case against Billia, as we think he had to, in the way that he did, he also in substance we think did what the House of Lords said he should do in Randall, at least so far as it was tailored to the present case.
71. For these reasons, in our judgment, there was no misdirection by this judge in this case."
"… where evidence of propensity of D1 is relevant to a fact in issue between the Crown and D2 it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against D1."
"Accordingly, where evidence of propensity of D1 is relevant, it may perhaps be read as referring to relevance because the evidence is admissible [against D1] as similar fact evidence"
"29. When the Recorder came to sum up, no doubt taking his lead from the way the case had been presented on behalf of the Crown, he made it clear that the evidence of the previous conviction and the finding of the gun were relevant to the cases against Flook and Ellis, but not part of the case against the appellant….."
"It is, however, important to have in mind that, subject to Lord Steyn's comments [at paragraph 35 of Randall] that we have cited, the evidence was admissible not as against the appellant. If he had been tried alone, the evidence would not have been admitted; although it is right to point out that the case against him would still have been a very strong case indeed. It was admissible in the case against each of his co-accused."
"We recognise the difficulty that if what Lord Steyn said in Randall is applied too literally, the person against whom evidence is admitted, which would not normally be admitted, would be prejudiced. The trial judge always has to do his best to ensure that justice is done to each defendant before him. This case provides a good example of how justice can be done."
"Without causing perplexity to the jury, the judge can indicate the Crown's case against each. It is perfectly possible for a judge to describe the Crown's case against one accused without referring to the evidence which is admissible in support of the case of the co-accused, and then, as this Recorder did, make clear the relevance of the evidence so far as the co-accused are concerned. This may help to minimize the prejudice that may be caused in any joint trial because evidence is admissible as against one accused which is not admissible against another."
"26. The approach of Lord Steyn in Randall was endorsed and applied by this court in the case of R v Price [2004] EWCA Crim 1359. Price was preceded by Clive B [2004] EWCA Crim 1254, in which Rix LJ analysed in detail not only the decision in Randall but also the decision in the other cases and he applied what Lord Steyn had said at paragraph 35. Rix LJ went on to say at paragraph 56:
'In other words if the propensity of one defendant becomes relevant as between his co-accused and the Crown, no distinction is to be attempted in viewing the position as between the former and the Crown. Thus where propensity is admitted for the sake of a co-defendant's defence, the Crown becomes the beneficiary of that. As Lord Steyn says, that is not unjust and the alternative would be unnecessarily perplexing.'
He added:
'A question may, however, be raised as to the ramifications of this position. In the more normal case where previous convictions come to be admitted for reasons other than their relevance to a co-accused's defence, a model direction requires the judge to warn the jury that they are not relevant to 'the likelihood of his having committed this offence'."
LORD JUSTICE HOOPER:
We now hand down the reasons for dismissing this appeal. We have been asked to certify a point of law of general public importance. We do certify the point in the terms requested:
"Where evidence of the propensity of D1 is relevant to a fact in issue between the Crown and D2, is not admissible at the behest of the Crown and is elicited at the behest of D2,
(i) should the judge direct the jury that the evidence is inadmissible in the case of D1 and that they should ignore it when considering his case? And
(ii) in any event, should the judge give the jury a propensity direction to assist them in making use of the evidence?"
An application has been also made to us in writing to grant leave to appeal to the House of Lords. Mr Dein QC is content that that application be dealt with on paper; he does not wish to make oral representations. Each member of the court has considered that application. We refuse leave to appeal to the House of Lords.
There is also an application before us for a representation order. We grant a representation order for either leading counsel or junior counsel, but not for both, and solicitors for the purposes of an application to the House of Lords for leave to appeal. If leave to appeal is granted, we grant a representation order for leading counsel, junior counsel and solicitors.