Daly, R v

LORD JUSTICE ELIAS: This is an appeal against conviction by leave of the single judge. The appellant was convicted by a majority of 11 to 1 of theft. He was sentenced in the Crown Court at Blackfriars before His Honour Judge Pillay on 28th February 2014 to 9 months' imprisonment suspended for 12 months. A co-accused, Neil Smith, was also convicted of the theft. He was sentenced to 6 months' imprisonment. He was in fact tried in his absence having notified the court that although he had absconded, he wished the trial to go ahead. He was represented by counsel in his absence.

The facts are during the week of 5th November 2013, the co-accused and the appellant did work together for a Miss Ellie Held, an 82-year-old woman living in a block of flats. She had fortuitously bumped into Smith, who was unemployed, and he agreed to clean her windows. When he came she was somewhat surprised that she had to provide him with the relevant equipment. They had a discussion and he agreed to come and paint her hall. He returned together with the appellant, Daly, and they did this work on Thursday 8th and Friday 9th November 2013. She paid £200 for the work. She later discovered that two envelopes which were in a chest of drawers in her bedroom had gone missing. They contained £5,000 in cash.

She subsequently reported this to the police and provided a statement. In her evidence she said that she felt at one stage the older man was distracting her and she was suspicious about them. She later identified Smith as the younger man who had been working on her property. He was in fact 45 at the time of the offence and the appellant was 68.

Smith was arrested on 13th November 2012. He made no reply to the caution and he refused to answer any questions in interview.

Subsequently, on 14th December, £5,000 in cash was posted through Miss Held's door. The money was in a brown envelope. There was a letter with the money saying: "I'm sorry for what has happened. I got other people into trouble over my desperation. I'm returning the amount. God bless." The appellant accepts that the letter was in his handwriting.

The appellant was arrested following interrogation of the cell phone of Smith. When cautioned he denied having taken any money and he provided a full comment interview having declined the opportunity to have a lawyer present. He accepted that he had been involved with Mr Smith in working in the house on the relevant Thursday and Friday although he said he was not there on the previous Tuesday. He accepted that he had rolled up a carpet and put it into Miss Held's bathroom, out of the way, but he had not gone into the bedroom. He also accepted that he had signed the receipt for the cash and agreed, as we have indicated, that he had written the note contained in the envelope when the money was returned. He said that he first knew of the theft when Mr Smith appeared at his house and told him what he had done. The appellant had agreed with Smith that the right thing to do was to hand the money back. The appellant said Smith had asked him to copy out a note which Smith had given him and he had agreed to do this, hence the reason why the note was in his handwriting.

His evidence before the court was largely consistent with what he had said earlier. He said that he had been stupid to write the note and believed that he had been set up by his co-accused.

There were two relevant rulings which are the subject of this appeal. The first concerned the bad character of the co-accused. The second concerned the note which had been written by Smith to the court when he had indicated that he wished the trial to continue in his absence. He said in that note that it was written not by himself but by someone else on his behalf. The judge refused to admit in evidence either the bad character evidence or the note.

As to the bad character evidence, the background to it was this. The appellant was a man of good character. He had been a carpet fitter for most of his life and therefore would have been in and out of people's houses and would have had plenty of opportunity to steal money from them. Yet he had no convictions. By contrast the co-accused was certainly not of good character. He had 28 convictions for 55 offences including various burglaries, five of which were dwelling house burglaries. One offence in particular had similar features to the particular offence committed on this occasion. Smith had attended the victim's home with a second male. He had distracted the victim while the second male stole property. Both men had, we are told, been convicted on that occasion. That was an incident in 2008 and the conviction was in 2009.

The appellant sought to adduce this particular conviction only as evidence of bad character. The application was made under section 100(1)(e) of the Criminal Justice Act 2003, which is as follows:

This is supplemented by section 104(1) which is follows:

The appellant in this case contended that the terms of section 101(1)(e) were satisfied. It was submitted that this was a case where there was a matter in issue between the defendant and the co-defendant, an important matter, namely which of these (although possibly both) had committed the offence. Furthermore, it was submitted that evidence that Smith had carried out a similar kind of theft in the past demonstrated that he was more likely than the appellant to have committed it on this occasion. The submission was that this should be put before the jury to assess the relative merits of the character of the two defendants.

The judge concluded that although the terms of the section 101(1)(e) were satisfied, the terms of section 104 were not. The co-accused, Smith, in the judge's view, had not in any way in the course of his cross-examination of the appellant suggested that the appellant had committed the offence rather than he. He had simply denied committing the offence himself. The judge said:

In our view it is important to note that section 104 is not exhaustive of the matters which might arise under section 101(1)(e). Section 104 only applies where the matter in issue is a propensity to be untruthful. There may, however, be other matters in issue between a defendant and co-defendant which are brought within the terms of section 100(1)(e) but are not within the terms of section 104.

This was such a case. We do not think that section 104 was applicable here. The issue was not the truthfulness or otherwise of the evidence given by Smith; he gave no evidence. The question was a different one, and concerned his propensity to commit an offence of this kind, contrasted with no evidence to suggest that the appellant had such a propensity.

In support of the submission that section 101(1)(e) was satisfied, the applicant relied upon the case of R v Phillips [2011] EWCA Crim 2935, which was in certain respects similar to this case. The appellant and his co-accused had been facing a charge of cheating the revenue. As in this case, there was no doubt that the offence had been committed and each was denying that he had committed the offence. As Pitchford LJ made clear in the judgment in the Court of Appeal, although neither was directly submitting that the other had committed the offence, they were impliedly doing precisely that because by a co-defendant denying that the offence had been committed by him, the only logical consequence was that the offence must have been committed by the other defendant. That is equally so here. It is plain that either one of these or possibly both had committed this offence. There is no suggestion that any one else could have done so.

We accept, again as Pitchford LJ made clear in Phillips, that the mere denial by a co-accused of participation in a crime does not meet the terms of the section. Also the fact that the co-defendant has a propensity to commit an offence of this kind is again not of itself an important matter in issue between co-accused within the meaning of section 100(1)(e). But this went beyond a defendant simple denial of his own participation. In the particular circumstances, his denial necessarily involved a contention that the co-accused had committed the offence.

We have also read a transcript of the cross-examination of the appellant by Smith's counsel and we agree with the submissions of the appellant, accepted by the Crown, that in fact that went beyond merely a denial of participation. It was effectively putting to the appellant that he had committed the offence. But quite independently of that, we think the circumstances of this offence and the nature of the denial by Smith was sufficient to attract section 101(1)(e). In our judgment, this was plainly a matter in issue between the parties and this was potentially substantial probative evidence of an important matter in issue between the parties. It is true that the evidence is not as powerful as it would be if it was being asserted that only one of them had committed the offence because it can of course be said that even if the evidence supports the case against Smith, it does not follow the appellant could not have been involved as a joint party.

Indeed, as Mr Perian for the Crown points out, the nature of the conviction which the appellant wished to have put before the jury was itself one of a joint activity involving a distraction burglary of the kind alleged to have taken place in this place.

Nevertheless, it seems to us that this was plainly a matter that should have been before the jury. They were entitled to have this evidence; indeed as the section makes clear, the judge was obliged to allow this evidence to be adduced before the jury once it was demonstrated that the terms of section 101(1)(e) were satisfied, as they plainly were.

The only issue, therefore, is whether the conviction is safe. The Crown submits that it is. Mr Perian has noted that there were some powerful features indicating the guilt of the appellant. In particular, he wrote the note, which was a very curious thing to do. The burglary was in fact in many respects rather like the kind which had been committed by Smith on a previous occasion and would have been before the jury if the application to adduce it had been allowed. He says that in all the circumstance there is no reason to suppose that the jury would have come to a different conclusion. So whilst accepting that the evidence ought to have been adduced,nonetheless he says that the verdict is safe.

We disagree. This was a majority verdict. It seems to us that it was potential important for the jury to know that whereas Smith had formerly been committing precisely this kind of burglary, by contrast the appellant had not. What the jury may have made of that in all of the circumstances we cannot of course say. Mr Perian is right to point out that there were some similarities between the two offences which might have cut against the appellant. It maybe, on reflection, there would have been a justification for adducing more evidence of the bad character of Smith including some of his other offences. Be that as it may, we are satisfied in any event this particular bad character application ought to have succeeded before the judge. Had the evidence been adduced we cannot say what the outcome would have been. We are not satisfied that the verdict would necessarily have been the same. In those circumstances, we quash the conviction.

It is not necessary for us to consider the second ground which is that the judge ought to have also allowed in evidence the letter from Smith to the court in which he indicated that he was not going to turn up and in which it was noted that somebody else was writing the letter on his behalf. The application made in respect of that was on the basis that it was rebuttal evidence. The judge, as counsel now accepts, quite rightly rejected the application advanced on that basis. It does not seem to have been put on the basis of hearsay. Had it been, then it seems to us that there are very powerful reasons why the letter ought to have been admitted although as the Crown point out, they would have wished to raise doubts about the veracity of that letter and whether the jury could with confidence be sure that it had come indirectly from Mr Smith.

It is not necessary to explore that issue any further given our conclusion on the first ground. The appeal succeeds and the verdict is quashed.

MR PERIAN: My Lord, I have had the opportunity of taking instructions from those instructing me. The view that we take is that since the main protagonist has been convicted in his absence, Miss Held is 84 years old and the appellant is coming up to 70 already, it would not be in the public interest to bring Miss Heald to court to give any further evidence. We therefore would not be seeking a retrial.

LORD JUSTICE ELIAS: If I may say so that seems to us a very sensible approach. We would have taken the same view. We would only add that a lot of the sentence has already taken effect. Thank you very much indeed.