![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Appeal (Criminal Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Miller v R [2010] EWCA Crim 1153 (26 May 2010) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2010/1153.html Cite as: [2010] 2 Cr App R 19, [2010] 2 Cr App Rep 19, [2010] EWCA Crim 1153 |
||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Help]
2010] EWCA Crim 1153 | ||
CRIMINAL
DIVISION)
ON APPEAL FROM
His Honour Judge Baker QC at St Albans Court
Strand, London, WC2A 2LL |
||
2010 |
B e f o r e :
MR JUSTICE MADDISON
and
MR JUSTICE MACDUFF
____________________
JONATHAN WILLIAM MILLER | Appellant |
|
| - and - |
||
| REGINA |
Respondent |
____________________
Laura Blackband (instructed by CPS Hertfordshire) for the Respondent
Hearing date: 6th May
2010
____________________
Crown Copyright ©
Lord Justice Pitchford :
criminal
property. In his defence, the appellant called a witness, Manny Clark, to support his case that neither the drugs nor the money which comprised the alleged
criminal
property were in his possession. The judge permitted the prosecution to cross-examine Mr Clark as to his bad character under Section 100(1)(b)
Criminal
Justice Act 2003. The appellant's single ground of appeal against conviction with the leave of the single judge is that the judge should not have permitted cross-examination and, having done so, failed to give adequate directions to the jury concerning the outcome.
Evidence at trial
Count 1: a wrap of cocaine found on top of a cupboard in bedroom 2.
Count 2: three bags of cocaine, in total 34.5 grammes, recovered from a Heinz spaghetti tin concealed in a false bottom within the sports bag.
Count 3: 41.7 grammes of cocaine recovered from a Sainsbury's plastic bag found inside the sports bag.
Count 4: a wrap of cocaine found in bedroom 1.
Count 5: 157 grammes of herbal skunk cannabis inside a Co-op plastic carrier bag recovered from the sports bag.
The cash representing the alleged proceeds of
crime
was distributed as follows:
Count 6: £900 in a brown envelope found in the wash bag beside the bed in bedroom 2.
Count 7: £1000 found in a box containing items of food within the cupboard in bedroom 2.
Count 8: £400 found beside the telephone in bedroom 1.
Count 9: £715 from Mr
Miller's
rear trouser pocket on his arrest.
Miller
was a current drug dealer were as follows: Found on the same cupboard from which the Count 1 wrap of cocaine was discovered was Mr
Miller's
passport. From inside the LA sports bag officers recovered a number of used latex gloves such as might be used by a dealer handling and cutting class A drugs. They were swabbed for DNA material. On analysis, scientists found mixed DNA profiles. The appellant's profile was found on four of the gloves. Also in bedroom 2 was found a plastic container holding 445 grammes of lignocaine and a second container holding 14 grammes of phenacetin. These are both chemicals commonly used as cutting agents for cocaine. There was strong scientific evidence reduced to the form of an admission that the count 1 wrap of cocaine found on top of the cupboard in bedroom 2 originated from the same batch as the cocaine found in the Sainsbury's bag represented in count 3.
Miller
gave evidence that he lived on benefits and odd jobs such as gardening. He occasionally paid rent to Mr South. The LA sports bag belonged to him but when he had last seen it in bedroom 2 it was empty. He did use latex gloves for painting but could not explain their presence in the sports bag. Mr
Miller
gave evidence that for the week before the police search, he was staying virtually full time with his girlfriend at a separate address. He had told his close friend, Manny Clark, that he could use bedroom 2 as a place where he could meet a married woman with whom Mr Clark was having an affair. He gave the keys to Mr Clark. On his arrest, however, Mr
Miller
had the keys to the flat in his possession. Mr
Miller
denied that either the controlled drugs or the money recovered from the flat belonged to him. When, on 11 April 2008 the appellant was interviewed, he declined, in the main, to comment but submitted a prepared statement:
"I deny any knowledge of the existence of controlled substances within my room. In addition, I am not aware of any cash being in my room other than approximately £300 that I withdrew from my post office account. I would like to add that I have been spending a lot of time at my girlfriend, Debbie Moore's home address. During this time a friend has been using my room occasionally. I do not wish to name him at present."
On 1 May 2008 a police officer visited Mr
Miller
on remand in prison and was informed that the person who was using his room was Manny Clark.
Miller's
previous convictions. They were admitted in proof of a propensity to possess and deal in drugs. His relevant convictions comprised the following:
(1) At St Albans Crown Court on 15 November 2002 MrMiller
pleaded guilty to three offences of possessing cannabis with intent to supply, one offence of possessing cocaine with intent to supply, one offence of possessing MDMA (ecstasy) with intent to supply, and four further offences of possessing Class A and Class B drugs.
(2) At Stoke Crown Court on 23 April 2008 Mr
Miller
pleaded guilty to one offence of possession of cannabis with intent to supply. He was in possession of over 1000 cannabis plants with a value exceeding £20,000.
Miller
were good friends. Mr
Miller
had handed the keys of 527 Long Chaulden to him in order that he could take his girlfriend there. They would use the flat to consume alcohol and cocaine. Mr Clark needed to be out of the way because the woman's husband was serving a prison sentence. The jury was shown photographs of the flat as it was found by the police. The prosecution suggested that the state of disarray was such that it would hardly have been used even for the purpose suggested by Mr Clark. Mr Clark explained that he owed money to some drug dealers. He had borrowed £5,000 some years earlier and the debt had risen to £20,000. He was threatened that if he did not repay £2,000 within a week he would be shot. This threat had been uttered he said in the presence of his girlfriend in the car park of a public house and the girlfriend told him her mother may be able to assist him. On Sunday 6 April he met the men again. He did not have the money. He said he would have it by Tuesday 8 April. The men told him he had to look after things for them, by which Mr Clark assumed they meant drugs. He said he could not mind drugs for them at his own home since his house had been raided by the police and cocaine found there. He was asked if he wanted a bullet in him. He responded that he had a mate called Jonathan
Miller
who had a flat that he could use. He took the men to the flat. There the men noticed a black sports bag. They placed two plastic carrier bags inside it. He assumed the bags contained cocaine. According to Mr Clark, neither the men nor he entered bedroom 1. On Tuesday 8 April Mr Clark's girlfriend gave him £2,000 in cash in an envelope. He went with the money to 527 Long Chaulden to wait for the men. He waited for a period of two hours but they did not turn up, so, having deposited the envelope containing £2,000 in cash inside the sports bag, at 10.00 pm he left. That was the point at which Mr Clark's evidence in chief was adjourned for the day.
Miller's
evidence that Mr South, the occupant of bedroom 1, was not at that time a drug user.
Application to adduce bad character evidence
Criminal
Justice Act 2003 on two grounds, first that it was "important explanatory evidence" and, second, that it had "substantial probative value in relation to a matter…in issue in the proceedings", which was of "substantial importance in the context of the case as a whole". Both Ms Blackband and Ms Simpson were counsel at the trial. In the absence of a transcript of the application they were agreed that Ms Blackband sought from the learned judge leave to ask limited questions about Mr Clark's remand in custody for these offences. She wished to suggest that Mr Clark was expecting a lengthy sentence of imprisonment. For this reason, he was prepared to take responsibility for drugs and money belonging to Mr
Miller
in the belief that his sentence would not be significantly increased. Furthermore, the prosecution wished to suggest that a man with access to firearms was unlikely to be intimidated by the threats which Mr Clark claimed was the underlying reason for the presence of the drugs and cash in bedroom 2.
The Judge's preliminary ruling
"The conclusion that I have reached is that the Crown should be permitted to ask questions ... in relation to the other matters arising out of an undercover police operation. I am going to invite Ms Blackband to be particularly careful to avoid going into detail so far as possible to relation to either of these matters, but particularly the second more serious series of offences alleged. And she has already acknowledged that she will be bound by the answers that are given. I am not going to exclude her from making reference to the fact that [MrMiller]
is charged with a firearms offence, among other offences."
Cross Examination of Manny Clark
Miller's
behalf by his expectation of a substantial sentence for the matters with which he was charged. Mr Clark denied the suggestion. Ms Blackband put to him that he was in fact guilty. He suggested that he was being set up. He was the victim of a conspiracy. Anyone, he remarked, could get hold of an antique gun. We are informed that Ms Blackband, as she had undertaken, did not further seek to support her assertions.
The Judge's Second Ruling
"... These are my deferred reasons. The Crown ... sought to cross examine [Mr Clark] on the fact that following an undercover police operation, he had been arrested for offences of possession with intent to supply undercover police officers with controlled drugs, and also he had supplied a sawn off shotgun .... In relation to the ... matter, a 38 page summary, giving a chronology of the undercover operation over a protracted period of time was disclosed. Most of that concerned persons other than Mr Clark. A few pages, however, dealt with conversations between Mr Clark and the undercover police officers and with the transactions upon which the Crown relied. The conversations were perhaps more revealing than the transactions themselves. The defendant has been charged but not yet arraigned in relation to these matters themselves. The Crown asserted that the evidence was important explanatory evidence, and it had substantial probative value to a matter in issue to the case, and it was of substantial importance in the context of the case as a whole. It was therefore admissible under Section 100 (1) (a) and (b)Criminal
Justice Act 2003. The defence submitted that neither route to admissibility was available... It is to be noted that the application was only to cross-examine the witness, it was not to adduce other evidence to present to the jury. In the old days before Section 100 came into force, the Crown would have been permitted without the necessity of seeking leave to cross-examine the witness about his misconduct in order to impeach his credibility. Nowadays, leave is required because the old common law rule has been effectively demolished (see section 99 (1) of the Act). Mr Clark's evidence was that he had been compelled by two men to whom he owed £20,000 to find a safe place to leave some items which he thought were cocaine, with a threat that if he did not, he would be shot. He said he took the threat to be a serious threat to his life and to his safety. His credibility was an issue, a fact accentuated by what was arguably a significant change in direction in his evidence after the overnight adjournment. The Crown's case was that the story was concocted and that Mr Clark was prepared to give evidence to support the defendant, his friend, and incriminate himself because he knew he faced a long sentence for the matters with which he is presently charged, because his own incrimination would not add significantly to his sentence. This submission seemed to me to overlook the fact that his evidence had not necessarily incriminated himself, for it left open the defence of duress, and it overlooked the fact that he has not been convicted of the most recent drugs and firearms offences... Mr Clark's credibility as a witness is a central issue in this case. Far fetched as the Crown's approach to this case may be, the jury are entitled, in my judgment, to learn about his involvement in matters which might have a bearing on his truthfulness as a witness, not so much for the purpose of establishing the Crown's theory as to why he might be prepared to support the defendant, but more simply to impugn the truthfulness of his claim as to what happened, namely that he left drugs in the defendant's bedroom because he had been threatened. I make it clear that the fact he had not been convicted of these offences would also inevitably emerge, if, as I understood, he disputed these charges too and indeed he did. But those then are the reasons for permitting this evidence to be put before the jury. I have now given them."
Directions in Summing Up
Miller
and as to the state of the evidence that he, Mr Clark, was guilty of the offence of conspiracy to sell a firearm. Accordingly (at page 9 of the transcript of summing up), the judge directed the jury as follows:
"He denied being a dealer in drugs. He said he had no convictions for drugs offences, and that is not, I think, disputed. Though he currently faces a trial in relation to allegations concerning drugs and a shot gun. I'd better have a word about these. Those allegations are allegations. And allegations don't by themselves prove anything. Furthermore, they are denied by Mr Clark. Ms Blackband says that a man who comes forward in matters which have led to him being charged, as Mr Clark is, is hardly a man who would be scared by a drug debt and threats in relation to it. Mr Clark didn't actually say that he was scared by the drug debt, but he did say that he took seriously the threat of being shot. Be very careful to treat Mr Clark fairly. There is no evidence of him being a drug dealer, nor is there evidence that he is guilty of the offences that are currently charged."
"Counsel's suggestions, members of the jury, about his guilt, do not amount to evidence. And a suggestion about facing a long sentence has no foundation in anything that has been put before you. My direction, which I add to what I have already said is this. You should disregard those particular suggestions and don't take into account what you have heard about his arrests in 2008. They really cannot help you in any way which would be fair to your assessment of him, and in any way which would be fair to the prosecution's case."
Discussion and Conclusion
EWCA
2866, [2006] 1 Cr App R 19 at paragraph 73; and Osbourne (reported with Renda) [2005]
EWCA
Crim
2826 at paragraph 58). Whether the bad character of the witness relied upon by the opposite party can be regarded as of substantial probative value in relation to the issue of credibility is the second and a very important judgement the trial judge has to make.
Miller
held no water unless it was proved that he was guilty of the offences with which he had been charged. It was a speculative exercise of the very kind that section 100 was intended to prevent.
EWCA
Crim
1091, the court was faced with a similar problem as to proof of the bad character alleged. Mr Bovell was charged with and convicted of an offence contrary to Section 18 Offences Against the Person Act 1865, wounding with intent. His defence had been self-defence. Following conviction in January 2005, his legal representatives discovered that the complainant had himself been the subject of an investigation in 2001 for an offence of wounding with intent. The alleged victim eventually withdrew the complaint for reasons which were unknown. Mr Bovell argued on appeal that, had he been aware of the allegation, he would have sought, and should have been given, leave to cross examine the complainant upon this incident, since it went directly to the issue of his credibility and, therefore, the safety of the conviction. At paragraph 21, Rose LJ giving the judgment of the court said:
"21... It seems to us to be unlikely in the extreme that the judge, had he known of the events in 2001, would have admitted the allegation of a Section 18 offence made against the complainant. We say that, first, because we entertain considerable doubt as to whether the mere making of an allegation is capable of being evidence within Section 100(1). As the allegation was, in the circumstances which we have identified, withdrawn, our doubt on this aspect is increased.
22. It is apparent from the circumstances, as we have summarised them, that if there was to be any question of the Section 18 allegation being admitted before the jury, it would necessarily have given rise to investigation of the other subsequent matters, including the aspersion on the credibility of the victim, the want of independent confirmation of his account, and the fact that he had withdrawn the allegation. An excursion into these satellite matters is, as it seems to us, precisely the sort of excursion which, as was suggested, in paragraph 12 of the judgment in Hanson, a trial judge should be discouraged from embarking upon. All of this adds to the unlikelihood of the judge permitting evidence of the 2001 events even if they had been known about at trial."
criminal
offences. As it was understood at the time of the application, he would deny his involvement. He would need to be, or should have been, advised that he did not have to answer the question if to do so might incriminate him. The result could only have been a denial by which the prosecution would have been bound, or Mr Clark would have refused to answer. These questions should not, by reason of the unfair prejudice they were capable of producing, have been permitted, certainly not unless the prosecution intended, with the judge's leave, to prove them. Having regard to the scale of the exercise necessary to prove them, it is clear that the judge would not have permitted it, and, indeed, he received an undertaking from the prosecution to be bound by Mr Clark's answer. We consider that the learned judge should have refused Ms Blackland's application, particularly in the light of his own scepticism as to its relevance to the issue of guilt and to the issue of motive.
Miller's
trial at St Albans, Mr Clark was arraigned upon the two disputed matters relating to a conspiracy to supply drugs and a conspiracy to supply a firearm, and he entered pleas of guilty. His denials to the jury during Mr
Miller's
trial were therefore untrue. It follows that the directions given by the judge to the jury were much more favourable to Mr
Miller
and Mr Clark than they would have been entitled to expect had the true facts been known at the time of trial. Had the jury known the truth of the allegations put to Mr
Miller they would have been entitled to apply that knowledge both to their judgement of the credibility of his evidence and to their evaluation of the worth of the prosecution's theory as to motive.