![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Criminal Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gabbana, R. [2020] EWCA Crim 1473 (09 November 2020) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2020/1473.html Cite as: [2020] EWCA Crim 1473, [2020] WLR(D) 608, [2020] 4 WLR 160 |
[New search] [View without highlighting] [Printable PDF version] [View ICLR summary: [2020] WLR(D) 608] [Help]
ON APPEAL FROM LIVERPOOL CROWN COURT
MRS JUSTICE NICOLA DAVIES
T20117738
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE JEREMY BAKER
and
MR JUSTICE HOLGATE
____________________
REGINA |
Respondent |
|
- and - |
||
JASON GABBANA |
Appellant |
____________________
Copies of this transcript are available from:
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Littler QC and Ms Anya Horwood (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 9th October 2020
____________________
Crown Copyright ©
LORD JUSTICE DAVIS :
Introduction
Background Facts
24/2/2011 18.47.03 Voice call Smart Heffey 24/2/2011 18.47.53 Voice call Asda 8674 B Faraji 24/2/2011 18.48.38 Voice call Smart Heffey 24/2/2011 18.49.14 999 emergency call 24/2/2011 18.51.29 Voice call 7 Seconds Heffey Smart 24/2/2011 18.52.28 Voice call -29 seconds Smart Appellant 24/2/2011 19.03.16 Voice call -60 seconds Heffey Smart 24/2/2011 19.06.43 Voice call -30 seconds Smart Appellant
The prosecution case was that this shows the 8674 murder phone (Smart) arranging the final "set up" of Faraji at 18.47.53. Smart then phones Heffey accordingly. The shooting takes place. Heffey briefly tells Smart of it by phone at 18.51.29 and Smart then informs the appellant. Heffey then gives a longer report to Smart at 19.03.16 and Smart then in turn reports to the appellant at 19.06.43. There had been no other identified phone contact between the appellant and Smart that day apart from those two calls: which the prosecution suggested was designed to distance him from the day's forthcoming events. The defence, on the other hand, among other things pointed to contact between Smart's phone at around the time of the killing and another phone with a number ending 6321 (styled at trial "the mystery man") which, the defence suggested, might indicate the involvement of someone else in what occurred.
Interviews
"Erm, I've just been living basically, Paul [interviewing officer] off, you know, the compensation I received you know, it was quite a large sum. So yeah, I've been living off that really."
He went on to say that he had not worked at all since 2006 (when he was released from prison).
(1) The first lie was as to the statement that he had had no contact with Smart after Christmas 2010 or on the night of 24 February 2011. But in his Defence Statement, and then during his evidence at trial, the appellant was to admit phone contact with Smart both in that period and on that night. He was to say that the contact that night was about arranging and then cancelling a party with some girls, as Smart had been unable to obtain a supply of cocaine required for the party. This was something the appellant had never mentioned in interview.
(2) The second lie was about the reason why he had disposed of his 3662 phone that night. He accepted that the reason he gave in interview was not correct. That had indicated that the disposal of the phone was unconnected with the killing of Faraji. But he now accepted that it had been connected. In this regard, the police had seized and examined the appellant's laptop. This showed him on 24 February 2011 to have been on the internet, accessing dating or adult sites, for around an hour from 18.10 until he stopped. It also showed him accessing news sites at 3.26 am, after the shooting, seeking news stories about the killing. But the point made by the prosecution was that the victim of the shooting had not by then been named, indeed was not named until two days later, on the following Saturday. Thus on the face of it an explanation was needed as to why he was accessing these stories at this time. What he was to say at trial was in complete departure from what he said in interview to the effect that he had been told in a club that night by someone he named as "Michael", of the killing of Faraji and had been told by Michael that there were rumours that the appellant had arranged it. He was to say that this was why he later accessed the news sites and also was why he disposed of his phone that night.
The Initial Ruling on s. 101 (1) (f)
"(1) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if
(a) all parties to the proceedings agree to the evidence being admissible,
(d) it is relevant to an important matter in issue between the defendant and the prosecution,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person's character.
(3) The court must not admit evidence under subsection (1) (d) or (g) 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."
"(1) For the purposes of section 101 (1) (f)
(a) the defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative value in correcting it.
(2) A defendant is treated as being responsible for the making of an assertion if
(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) the assertion was made by the defendant
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
(ii) on being charged with the offence or officially informed that he might be prosecuted for it,
and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it, or is likely to do so, or
(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
(5) In subsection (4) "conduct" includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to correct the false impression.
(7) Only prosecution evidence is admissible under section 101 (1) (f)."
Section 109 provides for (rebuttable) assumptions of truth in the assessment of relevance or probative value of evidence.
"As to "relevance" there is no specific requirement in section 101 (1) (f), but the facts are as follows. That in addition to his compensation payment the defendant has received substantial amounts of unexplained cash. It is the Crown's contention that this is consistent with illicit activity and whether it is or not is a matter which the defendant can be given every opportunity to address; but in a case where the defendant is said to be the figure behind a carefully executed contract killing the means by which he finances his lifestyle cannot be said to be irrelevant.
I am satisfied that a false impression was given at interview by the defendant, that evidence is now before the court, and the banking evidence sought to be adduced has a probative value in correcting the impression given by the defendant."
She refused to exercise her discretion to exclude under s. 78 of the 1984 Act. Having so ruled, she decided that it was "unnecessary" for her to rule on the application based on s.101 (1) (g).
The Defence Case at Trial
Further s. 101 (1) (f) ruling
"Mr Cummings, let me tell you my thinking. If this were a prosecution application pursuant to (d) or (g) I would refuse it, and I would refuse it because I think that text is too narrow and too tenuous to take it forward on the various extrapolations."
"MR. CUMMINGS: Well, I think in, well that then sets the parameters or the limits of the direction then that your Ladyship needs to give in respect of the bad character evidence. It is whatever direction is appropriate to material that is admitted via gateway f), so it is simply to correct the false impression and I submit the false impression on its narrower basis is simply that the defendant was in receipt of no income beyond his compensation money.
MRS. JUSTICE DAVIES: Yes?
MR. CUMMINGS: And I contend for a somewhat wider interpretation, namely that the false impression was that he was in receipt of no money other than legitimate money, and therefore that impression can be corrected by pointing to the fact that he had money over and above the compensation and that such money came from criminal activity. I see in my peripheral vision my learned friend nodding.
MRS. JUSTICE DAVIES: Yes.
MR. DENNEY: I accept that he could say that.
MRS. JUSTICE DAVIES: Good."
The Summing Up
"I am now going to move to evidence that you have heard about the defendant, in particular relating to his bank account. During the course of this case you have heard evidence that the defendant has a bad character in that his bank records disclose a number of sizeable cash deposits which the prosecution say have the hallmarks of involvement in serious crime. It is important that you should understand why you have heard this evidence and how you may use it. As I will explain in more detail later, you must not convict the defendant because he has a bad character. You have heard of this bad character because it may correction a false impression said to have been given by the defendant in interview when he stated that he did not work and had no income beyond the compensation which he had received in October 2009 for his wrongful conviction. The prosecution contend, and the defence do not dispute, that the defendants words have a wider interpretation, namely that the monies which he did deposit were obtained by legitimate means.
The defendant does not deny the statements given to police in interview. In evidence to the court, when asked about the various deposits, and, for example, the sum of £9,000 which he paid towards the purchase of his Porsche motor car which was not withdrawn from the bank, the defendant said that the monies were obtained through gambling, wins from horse racing or casinos. As to the horse racing, he said he could place grand bets, up to £1,000. At a casino he could go through £2,000 to £3,000 in a weekend.
You may use the evidence of what the prosecution say is the defendant's bad character for the particular purpose I have just indicated, namely to correct a false impression if you find it helpful to do so. You may also use the evidence in the following way, if you think it right you may take it into account when deciding whether or not the defendant's evidence to you is truthful. A person with a bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You must decide to what extent, if at all, his character helps you in judging this evidence. However, what this evidence does not do is establish any propensity on the part of the defendant to commit murder. Even if you concluded that the evidence of cash deposits does have the hallmarks of involvement in serious crime, this evidence does not amount to evidence of propensity on the part of the defendant to commit murder."
Delay
Grounds of Appeal
(1) The first is that the judged erred in permitting the admission of the evidence as to cash payments into the bank accounts as bad character under s. 101 (1) (f).
(2) The second is that in any event the evidence of such payments should not have been permitted to be used as evidence that the appellant had been involved in serious crime.
(3) The third is that the judge's legal direction on bad character in the summing up was erroneous: in particular in that it failed to instruct the jury that they first had to be sure that the appellant had given a false impression in his answers in interview.
(4) The fourth is that the judge failed to direct the jury in terms that they were to ignore any suggestion that the appellant was a drug-dealer.
(1) Ground 1
(2) Ground 2
(3) Ground 3
"That [bad character] evidence may or may not help you. Take it into account or leave it out of account as you consider appropriate. But do not make an assumption because a person behaves that way that means she's guilty of murder and had the necessary intent just because of these events."
" the jury should be directed that if they are to take propensity into account they should be sure it has been proved."
The argument of counsel in Mitchell to the effect that all that mattered was that the jury must be sure of guilt on the totality of the evidence, and that no special direction on the propensity evidence was needed, was thus rejected. What is therefore submitted by Mr Bennathan is that, although Mitchell was a decision on propensity, the same approach was required in the present case on the s. 101 (1) (f) direction. And here, it is objected, the jury were never so instructed. In consequence, it is said, the summing-up was fatally flawed.
"We should also add that if defence advocates do not take a point on the character directions at trial and or if they agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. The trial was considered fair by those who were present and understood the dynamics ."
We think, given the circumstances, that those observations are directly in point on this appeal.
(4) Ground 4
Conclusion