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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> O'Dowd v R [2009] EWCA Crim 905 (12 May 2009) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2009/905.html Cite as: [2009] Crim LR 827, [2009] 2 Cr App R 16, [2009] EWCA Crim 905, [2009] 2 Cr App Rep 16 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HH Judge Hawkins QC
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE BEATSON
____________________
KEVIN O'DOWD |
Appellant |
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- and - |
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REGINA |
Respondent |
____________________
MRS P. MAY and MR K. BARRY for the Respondent
Hearing date : 2 April 2009
____________________
Crown Copyright ©
Mr Justice Beatson:
Introduction:
The circumstances of the trial:
The charges on the indictment; SS's allegations
The relevant legislation:
"'Defendant's Bad Character'
101. (1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if -
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the prosecution
(3) The court must not admit evidence under subsection (1)(d) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged.
'Important explanatory evidence'
102. For the purposes of section 101(1)(c) evidence is important explanatory evidence if
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
'Matter in issue between the defendant and the prosecution'
103. (1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include-
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.
(2) Where subsection (1)(a) applies, a defendant's propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case."
The bad character evidence:
"1 Does the history of conviction(s) establish propensity to commit offences of the kind charged? 2 Does that propensity make it more likely that the defendant committed the offences charged? 3 Is it unjust to rely on the material and, in any event, will the proceedings be unfair if the material is admitted?": [2005] 2 Cr App R 21 at [7].
Discussion:
" the proper position in cases where the prosecution, in order to put forward evidence of bad character in these circumstances, effectively has to ask the court to evaluate the evidence at a previous trial; is that, whilst the prosecution will inevitably seek to reduce to a necessary minimum the amount of material which goes before the second jury, nonetheless it can only do so if it is prepared to be in a position to put before the jury all the evidence which was available at the previous trial if that is the only proper way to ensure fairness to the defendant".
The duty that lies on all parties to prepare a criminal case in accordance with the overriding objective includes consideration of the nature and extent of any application to admit bad character evidence. Here it was clear from the outset that the allegations by the three women were disputed and that they would be subjected to detailed examination and scrutiny.
The adequacy of the judge's direction to the jury
"[The defence say] that the witnesses are not reliable, plainly they say that the evidence of [SS] is not reliable and they say that the evidence of the three other women is likewise not reliable and counsel invited you, in effect, to look at their background in assessing their reliability. He submitted boldly that they are all liars. He included his client in that description, the defendant, he said, lies to the police, but he has admitted that he lied to the police. The defence say there are common features between the allegations but are they significant? None are unusual in themselves, that is what the defence are saying. Indeed, they developed matters by saying there are significant differences between the accounts. So those are all matters that you will have to consider."
Conclusion
2006
15 February Decision to admit bad character evidence after two day pre-trial hearing. In the light of ruling the trial was estimated to last four months
5 December Application to exclude bad character evidence under section 78 of PACE rejected.
6 December Trial starts.
16 Dec. 2006 2 Jan 2007 Adjournment for Christmas and New Year.
2007
10-23 January Adjournment because appellant in hospital.
20 February Conclusion of prosecution evidence relating to SS's complaints; rejection of submissions of no case to answer and that the bad character evidence should not be admitted. Appellant dismisses his legal representatives.
24 February 6 March Adjournment to enable Mr Bruce Houlder QC, instructed by the court, to prepare his cross-examination of JD.
7-9 March Evidence relating to JD's allegation heard.
10-14 March Adjournment to enable Mr Houlder to prepare cross-examination of RL.
15-20 March Evidence relating to RL's allegations heard. Following expression of concern by jury about appellant's ability to represent himself, he chooses to reinstruct counsel.
21 March 17 April Adjournment to enable new leading counsel to read and prepare.
15 April Original estimated date of end of trial.
17 April Trial resumes.
16-22 May Defendant admitted to hospital on various dates in this period because of concerns about his health.
23 May Defence case closed.
24 May 6 June Adjournment to accommodate a pre-booked holiday by a juror.
7 June Judge starts to sum up.
14 June Jury retire.
22 June Jury return verdicts.