R v Andre Mathurin

On 11 July 2024 this appellant was convicted of an offence of supplying a controlled drug of Class A to another. With the leave of the single judge, he now appeals against his conviction. The single ground of appeal is that the conviction is unsafe because of the number and nature of questions asked by the judge during the cross-examination of the appellant.

There was little if any dispute about the prosecution case, much of which was adduced in the form of agreed facts. For present purposes we can summarise it very briefly.

On 26 October 2023 police officers were preparing to execute a search warrant at a flat occupied by Dingaani Banda and Christine Stubbs. Before they entered the flat the appellant, driving a van, pulled up in the car park outside. He remained in the van, and after a time Banda cycled up to the van and spoke to the appellant. Banda then left and went into his flat. Six minutes later, the appellant got out of his van carrying what was described as a Footasylum drawstring bag. He went into Banda's flat and came out again four minutes later without the bag. He went back to his van and drove away.

About an hour later, the police executed the warrant, entered the flat and searched it. They found a black Footasylum bag inside a box on a shelf. Inside the Footasylum bag was a blue plastic shopping bag and inside that was a clear plastic bag containing just under 1 kg of heroin.

Whilst the police were still in the premises, and more than an hour after the appellant had driven away, he returned to the flat. When he knocked at the door it was opened by a police officer, not in uniform. The police officer greeted him, and the appellant immediately ran off. He was caught and detained. A search of his van found that it contained building equipment and tools.

Examination of the packaging of the drugs revealed fingerprints left by the appellant on the outside of the Footasylum bag. His fingerprints were not found on any of the bags containing the drugs which were inside the Footasylum bag.

The prosecution case was, unsurprisingly, that the appellant had conveyed the heroin in the Footasylum bag to Banda in the flat. Banda pleaded guilty to an offence of supplying a controlled drug of Class A. Ms Stubbs was charged, but no evidence was offered against her and a not guilty verdict was entered. Thus the appellant stood trial alone. Banda's conviction was adduced in evidence, as was a previous conviction of the appellant for a drugs offence, which the prosecution relied on as showing a relevant propensity on the appellant's part.

The defence case, in summary, was that the appellant had gone to Banda's flat for a perfectly legitimate reason. He knew Banda because they had from time to time worked together on building jobs. Banda had been asking the applicant to borrow a charger which Banda could use to charge an electric scooter. In addition, it was the appellant's case that a bag containing Banda's tools was in the back of the van. His evidence was that he had gone to Banda's flat to drop off the charger and the tools.

The appellant's evidence was that he was sitting in his van, talking on his mobile phone. Banda came to the side of the van but said that he needed to use the toilet and quickly went into the flat. The appellant's case was that he had put the charger into the Footasylum bag. He went to Banda's flat carrying the bag, put the bag down on the floor in the hallway, chatted briefly to Banda and then returned to his van. He said that he drove off, forgetting that he also needed to return the tools. A little later, he said, he remembered about the tools and returned to Banda's flat. The door was answered by someone whom he did not recognise. He did not appreciate that the man was a police officer but he nonetheless panicked and ran off.

That was the account given by the appellant in his evidence-in-chief. It is not suggested that his evidence-in-chief was unfairly or unduly interrupted by the judge. Nor is any complaint made as to the judge's later summing up of the case. It is accepted that the judge gave correct directions in law and fairly summarised the facts of the case. It should be noted in particular that at the outset of his summing-up the judge said this:

“... my view of the evidence, whatever you think it may be, does not matter in the slightest. If I appear to express a view about a piece of evidence, do not adopt it unless you as jurors collectively agree with it. Likewise if I omit, if I fail to mention, a piece of evidence which you regard as important, you give it the weight you see fit. Put another way: the judge really is not a 13th juror. The law is my job, and is for me. But the facts are for you and you alone.”

In the course of his summing-up the judge helpfully identified the issue which the jury had to decide in these terms:

“Did the defendant knowingly supply, that is give or hand over the block of heroin later found by the police?”

Although we have summarised the facts of the case briefly, it will nonetheless be apparent that there was, on the face of it, an ample evidential basis for the jury to find the case proved. The issue we have to consider is whether the conviction is rendered unsafe by the manner and the terms in which the judge intervened during cross-examination.

Before looking at the passages of the cross-examination which are criticised, it is convenient to mention the helpful summary of relevant principles given by Singh LJ, giving the judgment of the court in R v Inns [2018] EWCA Crim 1081; (2019) 1 Cr App R 5. As is apparent from [29] of the judgment, that too was a case in which it was submitted that the questions asked by the judge were in substance “tantamount to entering the arena and cross-examining the witness”. At [32] and following, the court summarised six “fundamentals which we take to be uncontroversial”. They were as follows:

“33.

First, the tribunal of fact in a criminal trial in the Crown Court is the jury and no one else.

34.

Secondly, ours is an adversarial system, not an inquisitorial one. The role of the judge is therefore to act as a neutral umpire, to ensure a fair trial between the prosecution and the defence. The judge should not enter the arena so as to appear to be taking sides. These are well established principles of our law ...

35.

Thirdly, there is nothing wrong in principle with a trial judge asking questions of witnesses in order to assist the jury. That indeed is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Otherwise, it may often be preferable for the judge to wait until the end of the evidence given by that witness, or at least the end of the evidence-in-chief. Often things that are not clear may become clearer once the evidence-in-chief has been completed.

36.

Fourthly, since ours is an adversarial system it is for the prosecution to prove its case and it will have the opportunity to cross-examine the defendant if he or she chooses to give evidence. It will often be unnecessary for the judge to ask any questions during the defendant's evidence-in-chief because it should be for the prosecution to cross-examine the defendant. It is certainly not the role of the judge to cross-examine the defendant.

37.

Fifthly, it is particularly important that the defendant should have the opportunity to give his or her account to the jury in the way that he or she would like that evidence to come out, elicited through questions from their own advocate. If there were constant interruptions of the evidence-in-chief there is a risk that a defendant will not be able to give his or her account fully and in the manner they would wish to put before the jury.

38.

Sixthly, this is not affected by the fact that the defence account may appear to be implausible or even fanciful. If it is truly incredible, the prosecution can reasonably be expected to expose its deficiencies in cross-examination and the jury will see through it. If anything, unwarranted interventions by a judge may simply prove to be counterproductive.”

We respectfully agree with and endorse those statements.

With those principles in mind, we turn to consider the criticised passages in the transcript of the appellant’s cross-examination.

Ms Ertan, then, as now, representing the prosecution, asked some initial questions in cross-examination which were essentially matters of context. The judge asked only a few questions, which are acknowledged to have been no more than permissible clarification. Ms Ertan then began to test and to challenge the appellant's account. She began to ask questions about why he was giving the charger to Banda. The appellant replied that Banda just wanted to borrow it to charge his scooter. Ms Ertan began her next question, “And what you say...” She was not, however, able to finish her question because the judge interrupted to say, “Did he not have one himself?” to which the appellant replied, “No, no. I don't know why, but yes.” After a handful of further questions by counsel, in the course of which the appellant referred to taking the charger into the flat in the Footasylum bag, the judge intervened and there was the following exchange:

“JUDGE: Just help me with that, when you say the Footasylum bag was in the van.

APPELLANT: Yes.

JUDGE: So, your charger was in your house?

APPELLANT: Yes.

JUDGE: How did you take it from your house to the van?

APPELLANT: Got the charger and put it –

JUDGE: Just in your hand?

APPELLANT: Yes, yes. I got the charger.

JUDGE: Any particular reason to put it in a bag? Why not just hand it over as you took it?

APPELLANT: It was just – I just put it in a bag. No thought behind it, no.”

Ms Dyas, representing the appellant in this court as she did at trial, points to that as a clear example of the judge asking questions which were not in truth matters of clarification, but were in the nature of testing the appellant's account.

A short time later, when Ms Ertan was asking questions about why the appellant had not simply given the charger to Banda when Banda first came to the side of the van, the judge again intervened and there was this exchange:

“JUDGE: You did not say to him, ‘It’s in the back of the van, just grab it and then shut the door’?

APPELLANT: At that time, it wasn't in the back of the van.”

There was then a series of questions about where precisely in the van the bag was located before being taken to the flat, culminating in the appellant explaining that it was on the passenger side and he had to stretch and get it. The judge asked:

“You did not do that? ‘Here you go, mate. Come round the passenger side and grab it, there it is’?

APPELLANT: As I have said, I was on the phone so I didn't think.

COUNSEL: That would have been the easier option, would it not? Reach over and hand it across to him through your window.

APPELLANT: As I said, I was on the phone. I didn't think, not at all.”

Ms Dyas points to that passage as another example of the judge testing, and it may be said challenging, the appellant's account, and doing so in circumstances where Ms Ertan in effect took up the line of questioning initiated by the judge.

A further passage criticised as testing of the appellant's account, rather than seeking clarification, came a few minutes later when Ms Ertan started to ask questions about the appellant's return to the flat sometime after he had first left it. Before she could develop that line of questioning there was this exchange between the judge and the appellant:

“JUDGE: Just one question from me at this stage. You go in with the bag, you say with the charger in.

APPELLANT: Yes.

JUDGE: And he says, ‘Drop it in the hallway.’

APPELLANT: Yes.

JUDGE: At that point, did he say, ‘What about the tools, mate?’

APPELLANT: No.

JUDGE: Did not mention it?

APPELLANT: He didn’t mention – I forgot, we both forgot.

JUDGE: You both forgot, okay.”

A short time after that, Ms Ertan had been asking questions about why the appellant had not taken the bag of tools with him when he returned to the flat on his second visit. She was about to ask about the stage at which the appellant ran off when the judge again intervened. There was a lengthy exchange, which we must quote in full:

“JUDGE: Again, just before we get that, because it is part of a chronology, I just want to understand – so, you have gone back with the tools. Well, they were there in the first place, but you had forgotten to give them the first-time round. Yes?

APPELLANT: I was going to – I was knocking the door to ask him to help me with it.

JUDGE: You did not take one of the bags in? You did not take anything with you when you went to the door?

APPELLANT: No, I was …

JUDGE: Why not?

APPELLANT: …literally trying to be quick because I had a client to train.

JUDGE: Well, would it not be quicker to take them with you then rather than go in, get him, and come back again?

APPELLANT: It was a – it was a bag and various stuff that I wanted him to come and help me with. I was quick, I was moving quick, so yes.

JUDGE: So, you took nothing with you?

APPELLANT: I thought – my idea, I thought it would be quicker just to go, knock the door, give him the stuff, help him, and then go back and train my client.

JUDGE: Again, just help me to understand, because if they are his tools, presumably he would have to carry them by himself at times.

APPELLANT: I would help him. So, because there’s – the tool bag was heavy –

JUDGE: Yes.

APPELLANT: – there’s other various tools in there and other stuff.

JUDGE: I understand that. But, for example, if he was to, different day, you have dropped all his tools and his bag off, if he was coming out on a job, he would have to get his tools there by himself, would he?

APPELLANT: That’s whatever he does in his – I wouldn't know how he is going to carry his tools.

JUDGE: I mean, presumably not all builders go around in twos carrying tools.

APPELLANT: If they needed help to offload the back of a van.

JUDGE: Okay, well, back to you, Ms Ertan.”

In that lengthy passage Ms Dyas submits the judge was not seeking clarification of anything said by the appellant; rather he was developing a line of questioning pointing out other courses of action which would have been open to the appellant. The inevitable effect, Ms Dyas submits, would be to convey to the jury that the judge was sceptical of the appellant's account.

Immediately after the passage which we have just quoted, Ms Dyas asked if she could raise a matter in the absence of the jury. The judge said, “Well, can we carry on now and see if we need to wait?” He went on to say, “We are just dealing with evidence now”.

The cross-examination continued for a comparatively short time thereafter. There were few interventions by the judge, and it is not necessary to refer to any of them as being criticised by Ms Dyas. It should, however, be noted that there was an intervention by the judge in relation to questions about a second count on the indictment of which the appellant was ultimately acquitted, and it is acknowledged that that intervention was of a helpful nature.

Ms Dyas submits that the judge, unhappily, went too far in his repeated interventions, asking questions which were a testing of the appellant's account rather than clarification of anything the appellant had said. Ms Dyas points out that this was a very short trial in which only one other witness gave live evidence, that being the officer in the case, who covered nothing of any great substance. Thus, Ms Dyas submits, the heart of the case was the account and explanation given by the appellant for the actions which he was agreed to have taken. Ms Dyas submits that the judge's questions conveyed scepticism, even incredulity, about the account, and gave the clear impression that the judge was taking the prosecution's side. She points to one or two moments in the transcript at which, she suggests, the unfortunate appearance was given that the judge and prosecuting counsel were operating as a “tag team”.

As to the point in the cross-examination at which Ms Dyas sought to raise a matter in the absence of the jury, she acknowledges that it could be said against her that the bulk of the criticised interventions had already occurred and that there might have been little that could effectively have been done at that stage. Ms Dyas points out, however, that it is always difficult for a defence advocate to know whether, and if so when, to intervene in circumstances such as these.

For the respondent, Ms Ertan accepts that some of the judge's interventions may have been excessive or undesirable. She points out that in a number of respects the questions were no more than helpful clarification. She submits that the jury would not have been left with an impression that the interventions were solely directed to challenging the appellant's account. She further points out that the questions asked were pertinent questions, of a kind which she may well have asked herself had the judge not done so. She emphasised the passage in the summing-up, which we have quoted, in which the judge made entirely clear to the jury that it was their view of the evidence and not his which mattered. Overall, she submits, this was a strong prosecution case and the conviction is safe even if the terms of the interventions are open to criticism.

We are grateful to both counsel for their extremely helpful and focused submissions.

We accept, of course, that the judge was not intending to do anything more than seek clarification. Unhappily, however, on a number of occasions he asked questions which were not clarification of anything said by the appellant. Nor could they be said to be clarification of what might have struck the judge as being an omission by oversight of something the appellant had intended to say. Rather, they were in the nature of testing the appellant's account in a manner which pointed out weaknesses in it. Whether counsel would have raised similar questions is nothing to the point. It was the judge who in fact raised them, and in our view he did so in a manner which would have left the jury with the impression that he was sceptical about the appellant's defence. That was, in our view, an impermissible entry into the arena, giving to the jury the appearance that the judge was taking sides.

Is the conviction nonetheless safe? We have given this very careful thought. We acknowledge that the force of Ms Ertan's submission that this was overall a strong prosecution case, and that the appellant's explanation for his actions – already implausible – was further weakened by the fact that he had not mentioned any of it when questioned under caution. We bear in mind also the important points that the appellant was able to give his account in his evidence-in-chief without any inappropriate interruption, and that his case was acknowledged to have been fairly summed up by the judge immediately before the jury retired to consider their verdict.

But all that said, the issue which the judge had rightly identified for the jury was a stark one. The jury were, as we have said, entitled to find the evidence sufficient to prove the charge. But in order to do so, they had to be sure that they could reject the account given by the appellant as untrue. The credibility of his evidence on that critical issue was therefore central to the jury's verdict, and on that central topic we conclude that his defence was significantly weakened by the inappropriate interventions of the judge. We are not able to say that the conviction remains safe. This appeal accordingly succeeds, and we will shortly quash the conviction.