R v Gavin Smart and David Charles Beard
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,LORD JUSTICE CLARKE |
| Judgment Date | 27 March 2002 |
| Neutral Citation | [2002] EWCA Crim 772 |
| Docket Number | Case No: 2000/3019/Y2 & 2000/2883/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 March 2002 |
[2002] EWCA Crim 772
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
His Honour Judge Jacobs
Lord Justice Clarke
Mr Justice Leveson and
Mr Justice Cooke
Case No: 2000/3019/Y2 & 2000/2883/Y2
Mr Michael Mather-Lees represented the Appellant Smart
Mr Peter Davies represented the Appellant Beard
Mr Stephen Hopkins QC represented the Crown
Introduction
This is the judgment of the court. The appellants are Gavin Smart and David Beard, who are aged 29 and 49 respectively. On 19 April 2000 at the Cardiff Crown Court before His Honour Judge Peter Jacobs and a jury both Smart and Beard were convicted on count 1 of the indictment of conspiracy to supply a Class B drug, namely cannabis resin, between 1 January 1998 and 31 March 1999. Smart was also convicted of conspiracy to supply a Class A drug, namely cocaine, between the same dates (count 3) and of 2 counts of possession of a Class A drug, namely ecstasy, in the form of 4 tablets of MDMA (count 8) and 1 tablet of MDA (count 9) on 4 June 1999.
On 7 July Beard was sentenced to 9 years' imprisonment and ordered to pay �330 under the Drug Trafficking Offences Act with 14 days' imprisonment consecutive in default. Smart was sentenced to 6 years' imprisonment on count 2 and 4 years' imprisonment on each of the other counts, all sentences to run concurrently. A confiscation order in the sum of �9,061 was made against Smart, with 6 months' imprisonment in default. There were a number of co-defendants. The principal conspirator was Martin Harris, who pleaded guilty to conspiracy to supply cannabis resin (count 1), MDMA (count 2), cocaine (count 3) and amphetamine (count 4). He was sentenced to 14 years' imprisonment on count 3 for the conspiracy to supply cocaine and 12 years' imprisonment on each of the other counts to run concurrently. A confiscation order was made in his case in the sum of �35,364.31 with 18 months' consecutive in default His father, Norman Harris, pleaded guilty to count 1 and was sentenced to 66 months' imprisonment. A confiscation order was made in the sum of �30,000 with 18 months consecutive in default. Sean Toms pleaded guilty to counts 1, 2 and 3 and was sentenced to 5 years on each of counts 1 and 2 and 7 years on count 3, all to run concurrently. Philip Evans pleaded guilty to counts 1 and 2 and was sentenced to 10 months concurrent on each count. Neil Francis pleaded guilty to count 1 and was sentenced to 45 months' imprisonment. Melvin Jones faced counts 1 and 4 but died with the result that the indictments were of no effect. Nicholas Aldron pleaded guilty to counts 1 and 4 and was sentenced to 27 months on each concurrently. He also pleaded guilty to count 10, which alleged supplying cocaine, and was sentenced to a concurrent sentence of 42 months imprisonment. Various confiscation orders were made in some of those cases to which it is not necessary to refer.
Smart appeals against conviction by leave of the single judge, Gibbs J. Beard also appeals against his conviction by leave of Gibbs J, although his appeal in part raises different questions from those which arise in Smart's appeal. Beard also renews his application for leave to appeal against sentence after refusal by the single judge, Rafferty J, although we adjourned that application to be heard, if necessary, after determination of his appeal against conviction.
The Crown Case
Central to the case for the Crown was that there was a large, well organised criminal enterprise involving the wholesale distribution of both Class A and Class B drugs throughout South Wales orchestrated by Martin Harris and lasting over twelve months. Since these appeals concern only the cases of Smart and Beard, it is not appropriate to set out here the whole of the Crown case as it was put against all the conspirators. It is sufficient to summarise it much as the judge did in the course of his summing up.
At the centre was Martin Harris, who was helped by his father Norman Harris and his right hand man Toms. It also involved Beard, Jones, Binding and Richards, who were recipients of large quantities of controlled drugs. Binding and Richards also acted as couriers and Hopkins was only a courier. Evans allowed his house to be used as a safe house for keeping drugs in. Although there was a Swansea connection, the operation centred round Cardiff. Smart was a receiver of drugs from Martin Harris and, at the very least, a retail distributor. The operation resulted in the seizure of 26,000 ecstasy tablets worth about �250,000, 1.2 kilograms of cocaine worth about �150,000 and 120 kilograms of cannabis resin worth about �500,000.
The nature of the conspiracy or conspiracies alleged is central to Smart's appeal. The Crown contended that Smart was an outlet for Martin Harris from whom he received both cocaine and cannabis resin, which he would then retail. The case against Beard was that he assisted Martin Harris in dealings in cannabis resin and also that he received large quantities of cannabis resin with a view to distribution to other dealers. Both appellants accepted that Martin Harris was involved in drug dealing on a large scale but each denied that he was a party to any conspiracy to supply drugs as alleged or at all.
Sharp's Appeal against Conviction
The Cocaine Count
The principal point taken by Mr Mather-Lees on behalf of Smart is that the judge should have withdrawn count 3, which alleged conspiracy to supply cocaine ('the cocaine count'), from the jury at the end of the Crown case. He accepts, in our judgment correctly, that there was evidence to leave to the jury that Smart was a party to a conspiracy to supply cannabis resin, but submits that there was no evidence which was admissible against Smart that he was a party to a conspiracy to supply cocaine.
He submits that the relevant principles are correctly summarised in paragraph 33�60c of Archbold 2002 as follows:
"It is a matter for the trial judge whether any act or declaration is admissible to prove the participation of another. In particular, the judge must be satisfied that the act or declaration (i) was made by a conspirator, (ii) that it was reasonably open to the interpretation that it was made in furtherance of the alleged agreement and (iii) that there is some further evidence beyond the document or utterance itself to prove that the other was a party to the agreement."
There are four grounds of appeal. In ground 1, Mr Mather-Lees submits that, in so far as the Crown relied upon the acts or statements of Martin Harris against Smart, the evidence did not satisfy limbs (i) and (ii) above and was inadmissible and/or was so speculative that the judge should have withdrawn the cocaine count from the jury. In ground 4, it is said that the evidence was inadmissible and/or that the cocaine count should have been withdrawn from the jury because the evidence did not satisfy limb (iii). We will consider these grounds first, before turning to grounds 2 and 4, which relate to counts 1, 8 and 9. We consider first the evidence relied upon by the Crown.
Evidence relied upon by Crown
The evidence relied upon by the Crown was of several different types as follows: evidence of Martin Harris' role in the whole operation, evidence of association with him, recorded conversations (the "DAT tapes"), evidence resulting from the search of Smart's premises, evidence of the value of the drugs and evidence found in the possession of Harris including what the Crown said were records of supply of both cannabis resin and cocaine and records of telephone numbers relating to Smart which were in the possession of Martin Harris.
As to evidence of association, the Crown relied upon a number of admissions made by Smart in interview after he was arrested on 4 June 1999. For example, when asked about his involvement with Martin Harris, he said that it was through someone called Pete the Greek who had asked him to pass a message to Martin Harris. Harris had obtained his phone number from Pete the Greek. Harris then phoned him and asked him if he had the letter from Pete the Greek. It was subsequently handed over in a pub, where Harris said that he wanted information about the buying of properties. Harris also asked him if he was interested in buying drugs, namely cannabis, but he said that he was not. He bumped into him some considerable time later at a night club, but again said that he was not interested in buying drugs. He said that Harris gave him the phone numbers of some friends of his. Harris had come round to his house on two occasions. On the second occasion he came at a time when he, Smart, understood that Harris was in some trouble and he told Harris that he was not welcome.
As to the recorded conversations relied upon by the Crown, they arose in this way. The police put a covert listening device in Martin Harris' car. We will return to this part of the police operation in the case of Beard, but in Smart's case the Crown relied upon two conversations which it said were between Harris and Smart. The first was on 23 rd March, which was on the same day as a meeting between Harris and Beard outside the shop Toys 'r' Us to which we refer further below. The conversation was denied by Smart, but, as we see it, the evidence of the tapes as to what Harris said is direct evidence admissible against Smart and not hearsay. It would be a matter for the jury whether they accepted that Smart was indeed the other party to the conversation. The Crown case was that the jury could be sure...
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