Omotoso, R v

This appeal against conviction, brought with the leave of the SJ, concerns the admission of the appellant’s bad character during his trial at the Crown Court in Harrow in June 2016 before His Honour Judge Arran and Jury, on two counts of possessing a firearm with intent to endanger life.

He was convicted of those two offences on 30 June 2016 and subsequently sentenced to an extended sentence of imprisonment.

On this appeal, Mr Bennathan QC (who was not trial counsel) appears for the appellant and Mr Harounoff (who was counsel for the prosecution at trial) appears for the respondent.

The facts of the case against the appellant can conveniently be summarised.

The appellant and his co-defendant, Tre Burgess, had known each other since at least March 2013. The appellant was a named driver on an insurance policy that had been taken out on 4 September 2015 in the name of Rees Toso (the appellant’s uncle) on an Audi A5 vehicle. The policy was cancelled five days later on 9 September shortly after the events which gave rise to the charges against the two men.

On Tuesday 8 September 2015 at 8.20 pm the Audi was parked in Ealing. At 8.23 the appellant was seen to approach the vehicle, get into the driver’s seat, and drive away. At 8.30 the vehicle was parked in Carmelite Road, Harrow Weald. The appellant walked away from the vicinity of the vehicle towards Tudor Road. At 9.40 the appellant and Tre Burgess walked from the vicinity of an address at Tudor Gardens, the appellant’s home. They turned left and continued in the direction of Carmelite Road. There was no prosecution evidence as to where the defendants or the vehicle were during the next eleven minutes.

At 9.51 the Audi was spotted turning into the High Road, Harrow Weald. As it drove southbound, four police vehicles, parked facing northbound, activated their lights and started to turn around. As they did so the Audi accelerated and performed an illegal right-turn into Boxtree Road. As it entered Kyneston Close, CCTV footage showed a hand emerging from the car at the location at which a Smith and Wesson revolver was subsequently recovered (Count 2).

The Police arrived on the scene thirteen seconds later. The Audi’s engine was still running but the car had been abandoned. A local resident reported that people had been seen in the back garden of number 16. Another firearm, a self-loading pistol containing a live round of ammunition was recovered, stuck in railings, on Boxtree Road, with a further part of the same gun being found a few yards away (Count 1). The firearm was a blank-firing pistol that had been converted to fire live ammunition.

A balaclava bearing the logo of F1 Go-Karting was found in the driver’s footwell of the Audi. Phone records showed that on the evening of 6 September the appellant had travelled to the F1 indoor Go-Karting centre in Colnbrook. In addition to the balaclava, the appellant’s bank card and mobile phone were both recovered from inside the car; and a pair of gloves was recovered from near the vehicle. Tre Burgess was apprehended on Boxtree Road. He was perspiring heavily, out of breath and very agitated.

Various forensic tests were subsequently carried out. The appellant’s fingerprint was found on the driver’s-side sun visor; and Tre Burgess’s fingerprints were found on the passenger window. The frame of the pistol contained a mixed DNA profile, with the DNA of the appellant being the dominant contributor. It was agreed between the expert witnesses that his DNA could have been deposited either by direct contact or secondary transfer. Tre Burgess’s DNA was recovered from the gloves found at the scene.

Gunshot residue was found in the barrel of both the revolver and the pistol. A medium level of gunshot particles was also found on the gloves that were recovered at the scene, indicating that the gloves had been worn either while the gun was discharged or simply when it had not been properly cleaned.

The appellant was arrested at his girlfriend’s home address on 26 November 2015.

In interview he gave no comment answers to the questions put to him. He submitted a prepared statement in which he accepted using the Audi vehicle. However, contrary to his evidence at trial, he said that he had returned it to his uncle on 6 September. He did not mention that he had given Tre Burgess a lift in the car or that Tre Burgess had thereafter departed in the car with the appellant’s uncle. These were matters which he raised for the first time in his evidence at trial.

The Prosecution case was that the appellant and Tre Burgess were on a joint expedition with firearms and that they were jointly in possession of both firearms. The relevant intent could be inferred from the fact that both guns were loaded with live ammunition and the pistol had been adapted to be used to discharge bullets.

The Appellant’s case was that he was not in possession of either firearm and was never present when the firearms were in the car.

The issues for the jury on both counts were whether the appellant had the firearms in his possession and, if so, whether he intended to use them to endanger life. In deciding those issues, the Judge directed the jury that they had to be sure that his DNA had come to be on the pistol as a result of him touching it rather than by secondary transfer. The truth of Tre Burgess’s evidence as to who had been in the car with him and what had occurred was also identified as a central issue for the jury in considering the appellant’s case.

Since the grounds of appeal are confined it is only necessary to mention parts of the prosecution evidence, a defence witness’s evidence and parts of the appellant’s evidence. The evidence took 5 days: 22, 23, 24, 27 and 28 June. On 27 June there was an abuse application made on behalf of the defence.

Detective Constable Hardy was the officer-in-the-case (‘OIC’). He was cross-examined on 23 and 24 June, and was recalled once on 27 June and again (after the appellant had given evidence and in circumstances we will come to) on 28 June. He gave evidence about the investigation, and we consider the nature of the cross-examination in more detail later in this judgment since it is the nature of the cross-examination which gave rise to the ruling which is in issue on this appeal. The officer said that he had visited a man called Roy Westbrook in the days following the incident but told the jury that Mr Westbrook had refused to make a statement because he did not want to get involved in the case. He also said that he had followed each line of enquiry into potential eyewitnesses either by speaking to police officers and civilians himself about what they may have seen, or by receiving reports from others as to the result of their enquiries. He had not made a written record of these investigations. He also said that he had discovered nothing of relevance and nothing to undermine the prosecution case.

The appellant gave evidence that the address at Tudor Gardens was his home where he lived with his family, but that he occasionally slept at his girlfriend’s home in Convent Way, Hayes. He was at one or other places between the night of the incident and his arrest in November. On 6 September 2015 he had gone go-karting with a number of friends to celebrate his 22nd birthday. He bought a balaclava which he wore for about 30 minutes whilst karting. He had been using the Audi that weekend as a birthday treat. He believed that the car belonged to his uncle, Rees Toso, who had added him to the insurance policy for the weekend. His uncle had dropped the car off with him on the Friday. He had driven his friends and girlfriend in the car. He had drunk and eaten in the car. He had initially planned to return the car on Sunday but his uncle agreed that he could keep it.

On Tuesday 8 September (the day in question) he took his girlfriend to a restaurant in Ealing at around 7.00 pm before dropping her off at her mother’s house in Wembley. On his way home he stopped off at Tre Burgess’s home as he needed to collect MOT papers from him which related to his own vehicle. Tre Burgess asked for a lift in the Audi to his mother’s address. The appellant explained that he could not take him to his mother’s house as his uncle was waiting for him but that if he returned home with him then he would ask his uncle to drop him off. Tre Burgess accepted the offer.

He returned home, and Tre Burgess then got in the Audi with his uncle. He did not get into the car but watched it drive away. He had inadvertently left his debit card and his phone in the car because his uncle had been hurrying him. He spent the rest of the evening playing a game with his brother. He could not explain how his DNA had come to be on the pistol. He was never in contact with any pistol.

Towards the end of the examination in chief his counsel asked him what he was doing between the 8 September (the date of the incident) and 26 November 2015 (the date of his arrest).

In cross-examination he was asked about the date on which he said he returned the car. He accepted that the date in his prepared statement was wrong. He also accepted that there was no reference to his uncle even in his Defence Statement, and he did not know where his uncle presently was.

Roy Westbrook was also called by the defence. He said that at about 10 pm he had seen a man in his garden. He was concerned that the man may have broken into his neighbour’s house and so he spoke to him. The man said that he was being chased by some men who might kill him. He attempted to make a phone call to the man’s sister at his request, but the man then ran off down the road at which point he called the police. The police had thanked him for his assistance and said they had caught the man. Thereafter there was no further contact from the police. The man he saw was slim and black, aged 25-30, and shorter than the witness (it was agreed that the appellant was considerably taller than the witness).

The appellant had previous convictions from 2009 onwards for offences of robbery, possession of cannabis, obstructing a police officer, battery, two offences of possession of cocaine with intent, possession of a knife, possession of heroin with intent, assaulting a constable, possession of cocaine, common assault, threatening behaviour, possessing an offensive weapon, theft, and affray.

After the appellant had given evidence and the defence had closed its case, the Judge invited the prosecution to consider whether to apply to adduce evidence of the appellant’s bad character. Mr Harounoff accepted the invitation and made the application on two bases.

First, he applied under s.101(1)(f) and s.105 of the Criminal Justice Act 2003 (‘CJA 2003’) to correct a false impression given by the appellant in his evidence that he was an auditor and was training to be a HGV driver (‘gateway (f)’). Secondly, he applied under s.101(1)(g) and s.106, on the basis that the defence had made an attack on the character of a prosecution witness (‘gateway (g)’). Although he had completed his evidence, the appellant could be recalled in order to deal with aspects of his convictions if necessary. It was agreed that his convictions for failing to comply with court orders were not significant.

The defence submitted that any application ought to be in writing. Furthermore, the application based under gateway (g) was made too late. It should have been made at the time of the cross-examination or at the close of the prosecution case. In any event, the cross-examination of the officer had not sought to question his honesty or integrity. Had the Crown raised its concerns at the time then defence Counsel could have made it clear that she was not alleging any bad faith on the part of the officer. He was questioned to highlight the failings in the investigation which may have been due to inadvertent mistake but which the jury needed to be careful about. The officer had said that he had spoken to a lot of different potential eyewitnesses, but that there was nothing further to disclose. None of those conversations were recorded. The evidence of Mr Westbrook – that he was not spoken to – contradicted the statement of the officer that he had been spoken to.

So far as the application under gateway (f) was concerned, the defence submitted that the appellant’s evidence that he had been doing auditing was not given with a view to advancing positive good character, but as part of his evidence to show that he was not hiding from the police but simply getting on with his normal life. Any application in respect of gateway (f) should have been made before the appellant was cross-examined. It did not follow from what he had said that the jury would form a view that he was doing a professional job at the time. Had the issue been flagged up at the time the appellant would have had the opportunity of correcting his evidence: The appellant had now clarified that he had meant to say that he was involved in stock-taking.

The Judge indicated that he was minded to allow the application but directed that the prosecution should put the application in writing. Following this, the defence made further submissions, or perhaps more accurately, repeated its submissions, with the Judge repeating points he had already. He then gave his ruling which is the subject of the appeal.

During submissions the Judge stated that the appellant could apply to be recalled but Counsel stated that she was not making such an application. The offer was repeated later by the Judge. The OIC in the case was then recalled and gave evidence of the appellant’s previous convictions as set out above.

Following this, Tre Burgess then gave evidence as to his movements on the day of the incident that was consistent with the appellant’s evidence. He admitted that he had been present in the Audi when guns had been thrown from the vehicle. He explained that he was in debt to someone after crashing their car and, as he could not afford to pay for the repairs, he had been forced to look after drugs for them. On the night of the incident this man had handed him another package to look after. He did not look inside. He took the package with him in the Audi when the appellant’s uncle gave him a lift home. When he saw the police cars he panicked, told the driver that he had something on him, and threw the items from the car.

Mr Bennathan submitted that the Judge had plainly formed an adverse view of the conduct of defence trial counsel; and it was against that background that two errors occurred.

In relation to the gateway (f), the second part of the sentence ‘in the process of getting my heavy goods vehicle licence’ gave the context for his evidence about being ‘an auditor’. It was not evidence that he was a qualified professional auditor or a chartered accountant. It was a passing comment immediately qualified by reference to him training to be a HGV driver.

In any event, s.105(6) of the CJA 2003 provides that evidence of bad character is admissible ‘only if goes no further than is necessary to correct a false impression’. In the present case a one-line admission that he had helped with a stock check would have corrected any false impression.

In relation to gateway (g), Mr Bennathan submitted that the Judge was overaffected by the choice of language rather than the substance of the cross-examination. There was no issue for the jury to resolve that required the weighing of the contrary account of the OIC and the appellant, and the only issue between Mr Westbrook and the OIC was whether the fact that the man he saw was shorter than him would exclude the appellant as the second man in the car.

The Judge told the Jury when directing them on the admission of the evidence of bad character (s/u p.31E):

Mr Bennathan submitted that the Judge did not suggest that there was any issue between the officer and the appellant; and if there was no such issue the evidence of bad character should not have been admitted. In any event the Judge was wrong to have been influenced by the abuse argument.

Finally, he argued that the case was far from overwhelming. Although, there was powerful evidence of an association between the appellant and the Audi, and a DNA trace on one of the weapons, the appellant was able to give an early and supported account of his earlier use of the car, and the forensic experts agreed that the DNA on one of the guns could have come from secondary transfer. He accepted that the defence case required a change of personnel in the car shortly before the guns were discarded, but such a change would have been at the appellant’s home and was not unlikely. He pointed out that Tre Burgess had put his character in evidence during cross-examination of the OIC, and the Judge had said at the time words to the effect that ‘drugs and guns go together’. The Judge later, when dealing with Tre Burgess’s evidence, reminded the Jury that he had never been involved in drugs dealing and firearms. Mr Bennathan submitted that in doing so he highlighted the link between drugs and guns to the appellant’s disfavour. In all the circumstances this court could not have confidence that the admission of the appellant’s extensive bad character did not result in moving the Jury from doubts about his guilt to being sure.

For the respondent, Mr Harounoff submitted that the question whether a defendant had given a false impression about himself (under s.101(1)(f) and 105) and how that false impression should be corrected by evidence (under s.105(6)) was fact specific, and that reference to authorities was unlikely to be helpful, see Renda [2006] 2 All E R 553 and Archbold 2018 §13-74. The appellant’s convictions were well known to the defence, and trial counsel could be presumed to have warned the appellant against putting his character in issue, and would herself have been aware of the dangers of making an attack on a prosecution witness in cross-examination.

He further argued that the character of the OIC in charge was repeatedly questioned on 23, 24 and 27 June 2016 and that this justified the application under gateway (g). The reason why the prosecution did not mount the application immediately was that the case was a serious one, and that time was taken to consider the appropriateness of the application and the cumulative effect of the false impression and the ongoing attack on the officer’s integrity. He argued that any delay in making it did not prejudice the appellant.

Finally, he submitted that the case against the appellant was very strong. He was observed walking with Tre Burgess in the direction of the Audi at 9.40, and at 9.51 the Audi drove past the police cars which pursued the vehicles until the point at which the two guns were thrown out of the window. The appellant’s phone was found in the car and had been used during the journey, his DNA was found in the frame of the pistol and his bank card and balaclava were found in the abandoned car.

We start with four general observations.

First, when considering an appeal in relation to this type of application it is important for this Court to bear in mind what was said in R v. Renda and others [2006] 1 Cr App R 24 p.380:

Secondly, there was a difference between the applications under gateways (f) and (g). Whether a defendant has given a false impression to the Jury (at least by what he or she says in evidence) can often be identified from looking at the transcript. In the present case the issue on the application of gateway (f) was relatively straightforward, and so was the likely impression on a jury. Whether a defendant has made an attack on another person’s character under gateway (g) may or may not be apparent from the transcript of the evidence. As is made clear in Renda, the trial judge will be in a far better position to assess the nature and direction of a cross-examination than this Court, and transcripts even if available can never convey the full picture. However, in the present appeal we have not been provided with transcripts of any part of the cross-examination.

Thirdly, although the application under gateway (f) was made soon after the appellant had given his evidence, the application under gateway (g) was made after the close of the prosecution case. Whether the applications could and should have been made earlier is a matter to which we return later in this judgment.

Fourthly, it is common ground that it was the Judge who suggested that the prosecution consider making a bad character application. We do not regard this as objectionable in itself, provided that a judge is scrupulous in not taking on the function of the prosecutor or appearing to do so. Any such suggestion to the prosecution should be carefully expressed, not least because the judge may not be aware of what has been agreed between the trial advocates. In the present case, the Judge could not have known whether the appellant’s character was to be put before the Jury under gateway (g) until the close of the cross-examination.

Section 101 of the CJA 2003 is headed, ‘Defendant’s Bad Character.’

Section 105 provides:

In the course of his summing-up (p.31D) the Judge said:

We are very doubtful whether the words used by the appellant at the conclusion of his examination-in-chief could have conveyed the impression that he was acting in some professional capacity or carrying out a professional task. He went on to say that he was in the process of getting his heavy goods vehicle licence. We would also have expected the application to have been made while the appellant was still giving evidence. We are, however, clear that the introduction into evidence of his previous convictions went considerably further than was ‘necessary to correct’ any false impression, within the meaning of s.105(6). If there was real and justifiable concern about what the appellant had said and the impression it might have conveyed, it could and should have been corrected in some form of admission as to what he had been doing, which apparently involved stock-taking. We are therefore clear that the appellant’s bad character should not have been admitted under gateway (f). We would add that the appellant’s evidence was given in relation to the period after 8 September.

Section 101(1) of the CJA 2003 also provides that evidence of bad character is also admissible if:

In our view, the words of s.106 make it clear that gateway (g) applies to an attack on another person’s character in front of the Jury. The nature and content of an abuse application in the absence of the Jury cannot form the basis of an application to adduce bad character under gateway (g). It follows that the Judge was in error to the extent that he relied on the abuse application, although it may properly have focussed his attention on the nature of the cross-examination of the OIC.

While it would be usual for a bad character application under gateway (g) to be made before a defendant gives evidence, as we have noted, it would only have become clear to the Judge in the present case at the end of the appellant’s cross-examination that the prosecution and defence had not reached a common understanding that the conduct of the defence had put the appellant’s character in issue. In fact, Mr Harounoff told this Court that he was considering making such an application quite soon after the cross-examination of the officer in the case began, but weighed the prospect of an appeal if he did so.

While there is an interesting discussion in Archbold 2018 at §13-91 to 13-94 about the extent to which cross-examination of police officers rendered previous convictions admissible under the Criminal Evidence Act 1898, we are concerned with the Judge’s ruling on the facts of the present case under the 2003 Act. Although his views were expressed at length during the hearing of the prosecution application, the reasons for the Judge’s decision were expressed in a ruling that was comparatively short.

Five matters are apparent from this passage.

First, the Judge considered that the appellant’s bad character was admissible under gateway (g) independently of its admissibility under gateway (f). In our view he was entitled to that view.

Secondly, he was affected in his view about whether the OIC had behaved in a reprehensible way, by what was said and argued in the absence of the Jury. For reasons that we have already identified, the Judge should not have taken into account what had been said in the absence of the Jury, other than as providing a focus for what was said in front of the Jury.

Thirdly, the Judge characterised the cross-examination of the officer as amounting to an attack on his integrity, in that he had failed to do his job properly. The Judge did not give particular instances of the questions that amounted to an attack on the Officer’s character. It may be that cross-examination of a police officer to suggest that his investigation was flawed may amount to an attack on his character, but judges should be careful to ensure that gateway (g) is not invoked too lightly in such cases, and thereby inhibit a legitimate line of questioning. A gentle hint should be sufficient to alert trial counsel of the potential dangers of pursuing a particular course. Although the Judge recognised that undermining a police officer’s evidence might be legitimate, he drew a distinction where it went ‘beyond the issues in the case’. Plainly gratuitous insults should not be permitted in the course of cross-examination and may lead to the revelation of the defendant’s character under gateway (g), but the Judge gave no examples of how the questioning suggested that the officer failed to do his job properly or how the cross-examination went beyond the issues in the case.

Fourthly, the Judge took into account the calling of Mr Westbrook whose evidence ‘was intended to undermine the evidence of the officer in the case’. It appears that Mr Westbrook’s evidence was inconsistent with what the officer in the case had said, but that was not of itself materially objectionable.

Fifthly, and most importantly, at no point did the Judge refer or consider s.101(3) of the 2003 Act.

It may be that the questioning of the OIC brought gateway (g) into play, but we have not been provided with the transcripts of the evidence which might show this. Furthermore, and importantly, the Judge did not consider the question that arose under s.101(3), and whether the admission of the appellant’s bad character had such an adverse effect on the fairness of the proceedings that the court ought not to admit it. These matters together with the error in relation to gateway (f) and the Judge’s reference to the submissions made during the abuse hearing, have left us in doubt as to the safety of these convictions. The appellant plainly faced a strong circumstantial case, but we see the force of Mr Bennathan’s submission that the admission of the appellant’s bad character in the circumstances we have described may have tipped the balance in the Jury’s mind so as to make them sure of his guilt.

Accordingly, we quash the conviction on counts 1 and 2. It was agreed at the conclusion of the hearing that, if we adopted this course, there should be a retrial and we so order.

The Crown Court record sheet erroneously records that the appellant entered a guilty plea on 26 February 2016 to an offence charged as count 8: Possessing Ammunition without a Firearm Certificate. It further records that an extended sentence of imprisonment was imposed on this count. It became apparent to the Registrar of Criminal Appeals that such a plea would have been inconsistent with his defence at trial and it was therefore likely that the record sheet was in error.

This was confirmed by Mr Harounoff. It appears that the Judge decided to withdraw all counts from the Jury other than counts 1 and 2, on the basis that they were superfluous. In the light of this information the Registrar wrote to the Crown Court requesting that they amend the record sheet so as to record the correct position in respect of count 8.

The Crown Court has offered no satisfactory explanation as to how the guilty verdict on count 8 came to be recorded, nor has it notified the Registrar that it has amended the record. There was plainly an error, and we shall direct that it be corrected and that notification of the correction be sent to the Registrar within 28 days.