Wallace v R

These are the Court’s reasons for dismissing the appeal against conviction of James Andrew Wallace. The appellant was convicted before Judge Stokes Q.C. and a jury in the Crown Court at Nottingham on 15 September 2006 of three offences of robbery and one of attempted robbery. Arising out of the same incidents he was also convicted of four offences of possession of an imitation firearm and one of unlawful wounding. He was sentenced to imprisonment for public protection with the minimum period to serve of 7 years and 381 days.

The case concerned four armed robberies (in one of the cases an attempt only) of small retail businesses in the Nottingham area in September/early October 2005. Three of the premises were shops, the fourth a bookmaker’s. The case against the appellant depended on circumstantial evidence, the Crown’s case being that there were common features to the robberies and that the appellant was a party to each of them although not necessarily present when the robbery was committed. He was involved in their organisation. The appellant did not give evidence. His case was that, viewed individually, there was insufficient evidence to convict him of any of the robberies.

The problem that has arisen in the present appeal is due to the “bad character” provisions in the Criminal Justice Act 2003 (“the 2003 Act”). Under the old law, before the provisions of Part 11 of that Act came into force, the issue in this case would have been quite simply whether the circumstantial evidence was strong enough to justify the conviction of the appellant of each of the offences. But, it is submitted on behalf of the appellant, the position has now changed. The definition of “bad character” in s.98 of the 2003 Act is such that the prosecution should have made an application under s.101 to admit the evidence and the judge should have ruled upon it. This point was not in the original grounds of appeal. We shall return to it later.

We turn to describe briefly the facts of the four robberies.

A Ribena bottle was recovered from under the front nearside seat. DNA was found on swabs taken from the bottle; it matched that of the appellant. Also recovered from the rear offside door pocket of the car was a broken piece of mirror. The front of the mirror bore a fingerprint that was later identified as having been made by the appellant.

Robbery 2 was of Booze Busters at approximately 9.45pm on 30 September 2005. Four masked males burst into Booze Busters and Philip England, his wife and a shop assistant, were forced to the floor. The robbers left with cash, alcohol and cigarettes. The shop assistant, James Elite, noticed that one of the males was wearing a black balaclava and was in possession of a metal pole. He also recalled two other males wearing black clothing and balaclavas. There was CCTV of the robbery. In the photographs a male can be seen wielding a gun. The male has a strap around his neck for a mobile phone. On the strap a short name can be seen. When the appellant was arrested on 2 October 2006 he was found to be in possession of a similar phone strap with the name James upon it. He was also wearing trainers, which the Crown claimed were similar to the ones that could be seen on the CCTV pictures.

Robbery 3 was of Larkdale Stores. Mr Lunn was in his shop at approximately 8pm on 1 October 2005 when three masked males entered the premises. One had a firearm, another was brandishing a pole. Mr Lunn reached the conclusion that the gun was an imitation and resolved to fight back. He grabbed the pole from one of the robbers and began chasing them. During the robbery carrier bags from a holdall fell to the floor. Mr Lunn was aware of one of the robbers shouting to another, “Germs, Germs, Germs.” Germs was a name by which one of the robbers was known. During the assault Mr Lunn was hit and required 55 stitches to 8 head wounds. The gun was recovered from the home address of Hallam Walker-Smith who pleaded guilty to one offence of assisting an offender. The gun was examined and DNA from Mr Lunn was found on it. One of the carrier bags was forensically examined and bore the appellant’s fingerprints. Shoes seized from the co-defendant Jonathan Scott revealed blood staining emanating from Mr Lunn. The appellant’s palmprint was found on another of the carrier bags and a fingerprint was also found on the inside of the same carrier bag which emanated from Nathanial Skerritt, to whom we shall refer in more detail in a moment.

Robbery 4 was of Ladbrookes. On Saturday 1 October 2005 Holly (aged 16) and Chelsea Palmer (aged 15) were holding a party while their parents were away. An Alfa Romeo was stolen from outside the house. At 3pm on 2 October 2005 three masked men burst into Ladbrookes, one carrying a gun which was aimed at an employee, Tracy Dowling. The robbers left empty handed as new toughened glass had been installed following a previous incident. Tracy Dowling pressed the panic alarm before leaving the premises. Robbers were seen to leave in the stolen Alfa Romeo. At 3.30pm armed police officers spotted the vehicle and attempted to slow it down. The vehicle was pursued and eventually involved in a collision and the occupants ran off. Scott was arrested running away from the scene. A second person made good his escape. As officers were examining the vehicle the appellant appeared on the scene. He was arrested. His mother lived nearby.

There were three co-defendants. Jonathan Scott, aged 18, pleaded guilty to the offences arising out of robberies 2, 3 and 4 i.e. those other than Standhill Stores. Hallam Walker-Smith, aged 17, pleaded guilty to retaining an imitation firearm with intent to assist Scott. Nathanial Skerritt, aged 19, was discharged on the judge’s direction in respect of the offences relating to robbery 3. When interviewed the appellant declined to answer any questions.

The following circumstantial evidence implicated the appellant. As to robbery 1, the stolen Saab seen outside Standhill Stores and to which one of the robbers fled had two connections with the appellant. First there was the DNA on the Ribena bottle and secondly his fingerprint on the broken piece of mirror. The car was later found abandoned near to where the appellant was living at the time.

In robbery 2 the man wielding the gun matched the general description of the appellant. More particularly, he had around his neck a mobile phone on a strap. The strap appeared from the CCTV to have a short name on it and when arrested the appellant had in his pocket a mobile phone attached to a strap with the name “James”. He was wearing trainers that were similar to those on the CCTV picture of the robbery.

As to robbery 3 the robbers left behind a gold plastic bag bearing a print of the appellant’s right middle finger. Another bag left at the scene contained his palm print (together with the prints of Skerritt).

As to robbery 4, it was admitted that the appellant had been at the premises on the morning of the robbery. After the robbery a stolen Alfa Romeo was seen leaving the premises with the robbers in it. After it had crashed, following a chase by the police, the appellant appeared and was arrested. The vehicle had been travelling in the direction of where he was living.

It was common ground that there were similarities about the robberies. They were all in the same area, close in time and similar handguns were used. The robbers wore balaclavas and coats with fur trim round the hood. In two of the robberies a metal pole was used. Scott pleaded guilty to each of the 4.

The first ground of appeal relates to an application by the appellant before Judge Milmo Q.C. on 17 March 2006 under para 2(1) of Schedule 3 to the Crime and Disorder Act 1998 to dismiss charges. The judge had to consider the Larkdale and Standhill robberies and the Ladbrookes attempted robbery i.e. robberies 1, 3 and 4. As the judge pointed out, Schedule 3 to the 1998 Act lays down the procedure to be followed where a charge is sent to the Crown Court under s.51 and there is an application to dismiss.

Paragraph 2(2) requires the judge to dismiss the charge if it appears to him that the evidence is not sufficient for a jury properly to convict.

In our view it is quite unrealistic to divide each of the robberies into self contained compartments, viewing the evidence in each case in, as it were, blinkers. The robberies were obviously not unconnected. The evidence disclosed on the papers in the offences that Judge Milmo was considering was plainly – if adduced at the trial – sufficient to call for some explanation from the appellant. Judge Milmo was, of course, considering the situation pre-trial before any evidence had been called. Inevitably the situation was going to be somewhat different after the witnesses had given evidence. In our view the pre-trial decision of Judge Milmo cannot be faulted either in its reasoning or result.

It will be appreciated that the main thrust of the appellant’s original grounds of appeal was that that there was inadequate evidence on each count to justify his conviction. Consequently, his second ground of appeal is that the judge should have withdrawn the case from the jury at the close of the prosecution’s case. At this point the judge had under consideration all of the offences.

The judge described the way the case was put at page 11. The appellant was the prime mover in the organisation and the execution of the offences on the indictment. He was a much older man and a physically bigger man and organised the robberies, albeit he only personally attended the robbery of Booze Busters. He participated in the other robberies in ways not particularly defined by the prosecution but amounting to being the organiser and beneficiary of the offences. He went on that it was not a case where the Crown had chosen to charge a single offence of conspiracy to rob. He accepted that the prosecution had to establish more than in the case of conspiracy where proof of being a party to an agreement to commit robberies was enough. Here the Crown had to prove that the appellant actually participated in each offence. He pointed out the appellant’s case was different from that of Skerritt. He said:

“So far as (the appellant) is concerned, I have received helpful submissions from Mr Aina in respect of each transaction, each of the four transactions and while I agree that the evidence – as I must ignore everything I have read in Scott’s statement – is not of the strongest, it does seem to me that the case of (the appellant) is wholly different overall than the case of Nathanial Skerritt. The evidence on the individual robberies may, when looked at individually, not be sufficient for a jury to draw the inference that he participated in all of these robberies, but when that evidence is put together and properly put together, it seems to me there is a sufficient basis of fact – and none of these facts are essentially disputed – to show, first of all, that it was organisationally the same team that committed these robberies, although the individuals may have differed in the carrying out of the robberies, and that the number of coincidences there would have to be if (the appellant) were not a party to these offences are such that they would be fanciful. I give by way of example the evidence on count 1, not that he was involved in robberies generally, which as I said at the outset of this ruling would not be sufficient, but that he was involved in the robbery of Mrs Basra’s shop on 10 September 2005 lies wholly in his connection with the getaway vehicle which was stolen some weeks before the robbery, but in which was found a Ribena bottle which had his DNA on it and a broken wing mirror glass which had his fingerprints on it. It is perfectly true that an innocent explanation can be put forward, as he does in his defence statement, but it seems to me that given the overall picture, a jury ought to make an assessment of that rather than me.

Equally, the robbery at Booze Busters, it being a black and white film, one cannot say with certainty, because of the nature of the film, that he must be the person, the larger person, with the phone with the strap, the gun and the particular trainers, but the evidence, when linked with that which was recovered when he was arrested, is sufficient in my judgment, for a jury to be given the task of deciding on the evidence whether the inference they would have to draw from the circumstances of that robbery is irresistible.

Likewise, the robbery at Larkdale. It is not a case, as I have said, where the Crown ever suggested he was present at that robbery. The evidence of his fingerprints on two bags may go to the question of his organisational status. The fact that he is not shown to be there does not detract from that, it is not suggested that Skerritt, of course, is an organiser………”

Finally he said that, the background, the generality of the Crown’s allegation that this was the same team and the appellant was the organiser could not be used as a substitute for the absence of evidence linking him with a particular count. But he added, as things presently stood there was sufficient evidence to justify the jury continuing to try the case.

In our view the judge’s ruling cannot be faulted. The primary facts were there for all to see. This was a classic case of circumstantial evidence. It was for the jury, not the judge, to decide what inferences could be drawn from the circumstantial evidence.

The next ground of appeal relates to the summing up. The appellant chose not to give evidence. That can be a very dangerous course when the case turns on circumstantial evidence. But the choice was the appellant’s and the appellant’s alone. The jury was thus left with no evidence from the appellant to explain any of the undisputed primary evidence – nothing to answer the Crown’s submission that they should draw the obvious inferences.

The judge correctly directed the jury about drawing inferences. He said:

“What do I mean by “drawing an inference”? There is nothing difficult or controversial about drawing inferences, you do it every day of the week without even thinking about it. An inference is simply a conclusion, a logical conclusion, based upon primary facts of which you are sure.”

Then he gave an example. He continued:

“You decide what you are sure about and you then draw the logical conclusions from those facts. But you must not draw adverse inference against the defendant unless you are satisfied there is no other logical explanation for the facts as you find them to be and before you draw any such inference against him, you must have regard to any alternative sensible explanations that there may be for the facts of which you are sure. In short, unless the inference contended for by the Crown is, in your judgment, irresistible and there is no other alternative logical, satisfactory explanation, then you do not draw any adverse inference against the defendant. Only if it is the obvious sensible conclusion.”

The judge also directed the jury they could only convict the appellant if they were satisfied he participated in the particular offence they were considering. He said:

“So you have got to look at the whole picture and decide whether the whole picture plus the evidence that relates to that count causes you to draw the inevitable inference that he was participating in some way in that robbery.”

He pointed out there was no direct evidence the appellant was present at any of the premises although there was enough on the CCTV pictures at Booze Busters to infer he was there. The judge made it very clear to the jury that no single piece evidence was enough to convict the appellant of any of the offences but that it could be a different story if one looked at the whole picture.

In our judgment, there can be no justifiable complaint about the way in which the judge left this case of circumstantial evidence to the jury. The real focus of the appeal has, however, been on another question. Part 11 of the 2003 Act sweeps away the old rules governing the admissibility of bad character evidence (see s.99) and introduces an entirely new code. S.98 defines “bad character” in such a way that it includes everything that is not excluded. It provides:

“98 “Bad Character”

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –

(a)

has to do with the alleged facts of the offence with which the defendant is charged, or

(b)

is evidence of misconduct in connection with investigation or prosecution of that offence”

(S.98(b) is irrelevant for the purposes of the present case.)

“Misconduct” is defined in s.112(1) as meaning the commission of an offence or other reprehensible behaviour.

S.112(2) provides that:

“Where a defendant is charged with two or more offences in the same criminal proceedings, this Chapter (except section 101(3)) has effect as if each offence were charged in separate proceedings; and references to the offence with which the defendant is charged are to be read accordingly.”

The problem in the present case arises because the four robberies, although charged individually, cannot be considered in four separate and self contained compartments. The evidence is circumstantial; the jury has to look at the whole picture when it is considering each individual case. Were the appellant charged with conspiracy to rob rather than with four substantive offences there would, it seems to us, be no difficulty because all the evidence would be to do with the facts of the offence charged – the conspiracy – and thus fall within the exception in s.98(a). We ignore for present purposes the complications that might arise if the Crown charged conspiracy to rob but additionally substantive firearms offences and a substantive wounding offence.

The appellant’s argument runs thus. S.112(2) means that for the purposes of s.98 the court must approach the matter on the basis that, when considering robbery 1 it must pretend that robberies 2, 3 and 4 are charged in separate proceedings and so on when considering each of the other robberies. All the evidence other than that which bears directly on robbery 1 (i.e. that linking the appellant to the getaway car) falls within the description evidence of or a disposition towards, misconduct on his part (see the definition of misconduct in s.112(1)), and because it has to do with robberies 2, 3 and 4 rather than robbery 1 it does not fall within the s.98(a) exception and therefore triggers the bad character provisions in s.101.

S.101(1) provides that evidence of the defendant’s bad character is admissible if, but only if, it passes through one of the 7 gateways in that subsection. The appellant argues that no application was made to admit the evidence as bad character evidence. Accordingly, the judge never ruled on its admissibility. It should not have been admitted and the conviction cannot stand. The prosecution’s answer is that if an application had been made the evidence would inevitably been admitted under s.101(1)(d) because it was relevant to an important matter in issue between the defendant and the prosecution, namely whether the appellant participated in the robberies. The admission of the evidence would not have had an adverse effect on the fairness of the proceedings and the restraint upon its admission in s.101(3) would not have applied.

If the appellant’s argument is correct, it seems to us that all of the circumstantial evidence in this case fell to be considered as bad character evidence. This is because as soon as one moves from considering robbery 1 to considering robberies 2, 3 or 4, the evidence relating to robbery 1 falls within the bad character definition in s.98 just as was the case with the evidence relating to robberies 2, 3 and 4 when one was considering robbery 1.

The appellant relies on the words of Hughes LJ R v Chopra [2007] 1 Cr App R 16, para 14. That was a case where the appellant was a dentist who had been convicted of indecent touching of three teenage patients. The issue was whether the jury should have been permitted to treat the evidence of one complainant as supportive of the evidence of another. Hughes LJ, having recited s.112(2) of the 2003 Act said:

“We agree that this means that where a defendant is charged upon several counts the evidence which goes to suggest that he committed count 2 is, so far as count 1 is concerned, bad character evidence within the Act. Accordingly, the evidence relating to count 2 can be admissible evidence in relation to count 1 if, but only if, it passes through one of the gateways in section 101. The same applies vice versa and however many counts there may be.”

Chopra was not, unlike the present case, a case that depended on circumstantial evidence. The issue there was propensity to offend in the manner charged. Nevertheless Hughes LJ did not limit his words to any particular kind of case and moreover what he said accords with the natural meaning of s.112(2).

We very much doubt whether the draftsman of the bad character provisions in the 2003 Act had in mind cases such as the present where the issue for the jury is the inference to be drawn from circumstantial evidence.

The fundamental and underlying point of Mr Aina, who has appeared for the appellant, is that when considering whether the appellant participated in one of the robberies any evidence tending to show that he participated in any of the other robberies is evidence of or a disposition towards the commission of an offence or other reprehensible behaviour on his part and consequently is caught by the definition of bad character in s.98. The evidence, he argues, must therefore be treated as bad character evidence and the relevant statutory provisions applied notwithstanding (i) that the evidence would not have been evidence of bad character before the 2003 Act and (ii) that it could be admitted at common law as relevant circumstantial evidence tending to show that the appellant was a participant in all the robberies, not necessarily in the sense that he was present at their commission but that he was involved in their organisation.

Is in truth the evidence implicating the appellant in the other robberies evidence of bad character? Is it really evidence of a disposition towards the commission of an offence other than the one under consideration or other reprehensible behaviour? Or is it more accurately described as indirect relevant circumstantial evidence?

The opening words of s.98 refer to misconduct on the appellant’s part. It may be said that in a case where one is dealing with circumstantial evidence the question is begged whether the evidence goes to show misconduct on the appellant’s part until the inference is actually drawn from the circumstantial evidence that the appellant was a party to the offence. This view appears to accord with that of the Judicial Studies Board (“JSB”) commenting in the Crown Court Bench Book on direction 20.1. That direction they say is relevant “Where there is no direct evidence that the defendant committed the offence charged or any of the ‘similar offences’ (as in the cases of Makin v Attorney General for New South Wales [1894] AC 57 PC and R v Smith (1915) 11 Cr App R 229).” The JSB comment is that: “(This direction) in our view does not really involve evidence of bad character at all. It covers a situation in which there is no direct evidence that the defendant committed any of the offences charged. It is in fact a particular example of using circumstantial evidence to prove the defendant’s guilt of all the offences. In our view, therefore, that direction survives the 2003 Act and should remain.”

Miss Bradley, for Crown, puts it this way. It is necessary first to decide whether the offences are linked before it can be decided whether the appellant is implicated. He is not implicated because the evidence shows any disposition towards misconduct, he is implicated because the evidence shows by inference his connection with all the robberies.

In our view the difficulty with the submissions that the “bad character” provisions of the Act are not applicable is the wide and comprehensive manner in which “bad character” is defined. Furthermore, s.103(1) describes matters in issue for the purposes of s.101(1)(d) as including the questions of whether the defendant has a propensity to commit offences and a propensity to be untruthful but it does not limit matters in issue to those questions.

In our view, the important matter in issue was not whether the appellant had a propensity to commit offences or to be untruthful but whether the circumstantial evidence linking him to the robberies, when viewed as a whole, pointed to his participation in and guilt of each offence. Nevertheless, the definition of ‘bad character’ in s.98 is in our view sufficiently wide to have triggered the operation of s.101 and in particular s.101(1)(d). Although technically within the definition of bad character, the purpose of the admission of the evidence was not to prove that the appellant was of bad character in the sense that that expression is commonly understood. Once before the jury the evidence was relevant for what it tended to prove namely that when viewed as a whole the appellant was guilty of each of the offences.

In the present case no application was made to adduce the evidence under s.101(1) for the reason that it did not occur to anyone that it was bad character evidence as defined by the Act. Had such an application been made it seems to us inevitable that the evidence would have been admitted under s.101(1)(d) and accordingly no injustice was done by the admission of the evidence.

We doubt whether the draftsman of the 2003 Act intended to bring a case such as the present within the bad character provisions of the Act. But we think it is difficult to escape the conclusion that he has done so.

We have obtained some assistance from the judgment of the Lord Chief Justice in Campbell [2007] EWCA Crim 1472 and in particular his observation at para 25 that once evidence has been admitted through a gateway it is open to the jury to attach significance to it in any respect in which it is relevant. The court in that case was considering not only the approach of the trial judge when summing up in relation to previous convictions but also the more general question of the approach of the court to directions that deal with what are essentially matters of common sense. It is true that the court in Campbell was concerned with very different circumstances from those in the present case. It was there concerned with a defendant’s previous convictions, their relevance to the offences charged and what direction should be given to the jury. However, the message that this court takes from that judgment is that slavish adherence to standard form directions is no substitute for straightforward explanations to the jury of what are essentially matters of commonsense.

This was not a case in which the judge was required to give any bad character direction to the jury. He properly directed the jury about the relevance of the evidence as circumstantial evidence and the fact that it was or may have been bad character evidence that should technically have required admittance through s.101 gateway was neither here nor there.

It would of course always be possible in a case such as the present where evidence falls technically within the definition of bad character, albeit its admission is received for some quite different purpose, for the parties to agree to its admission under s.101(1)(a). That in our view would be the simplest course. It did not happen in this case. But if, as appears to us to be the position, the evidence in question did fall within the wide definition of “bad character” there should strictly speaking have been an application to admit it under s.101(1)(d). Had there been such an application it would inevitably have been successful. No “bad character” direction to the jury would have been necessary. Indeed no reference to “bad character” in the commonly understood sense of the words would have been necessary at all. The case should, and no doubt would, have been summed up just as it was, as a case that depended on circumstantial evidence.

We are completely satisfied the appellant’s conviction is safe and it is for those reasons that we dismissed his appeal on 18 May 2007.