R v Gordon (Stafford)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HENRY,MR JUSTICE ROUGIER |
| Judgment Date | 28 July 1994 |
| Neutral Citation | [1994] EWCA Crim J0728-14 |
| Judgment citation (vLex) | [1994] EWCA Crim J0728-17 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 93/959/Z5,No. 93/959/Z5 |
| Date | 28 July 1994 |
[1994] EWCA Crim J0728-14
In the Court of Appeal
Criminal Division
Lord Justice Henry
Mr Justice Rougier
and
Mr Justice Douglas Brown
MR A FULFORD QC appeared on behalf of the Appellant
MR J McCRINDELL appeared on behalf of the Crown
On 8th December 1992 in the Crown Court at Manchester the Appellant was convicted by a majority verdict of possessing a Class A drug, crack cocaine, with intent to supply. The jury was discharged from returning a verdict on the alternative count of possessing such a drug. He was subsequently sentenced to 6 years’ imprisonment. A Drug Trafficking Offences Act confiscation order for £16,009 was made. He now appeals against that conviction with the leave of the single judge.
The first line of defence went to the question of possession. The defence was that those drugs were never in the Appellant’s possession, but were effectively “planted”. The Appellant had not been under surveillance but had driven up to the car park of the West Indian Sports & Social Club at a time when the plain clothes police officers, who subsequently arrested him, were obstructing the car park entrance in their unmarked vehicle. According to the police evidence, the Appellant was abusive even after they had identified themselves as police officers on duty, and it was after the Appellant had gratuitously picked a quarrel with them that one of the two officers alleged that he saw him drop a packet containing 8 rocks of crack cocaine, with a street value of £200. The defence case was that this never happened, and the defence pointed to the unlikelihood of one in possession of crack cocaine picking a quarrel with men who had already identified themselves as police officers.
The judge clearly regarded what did or did not happen in the car park as being the most important element in the whole case. He said of the Appellant’s account of it:
“That is his account of the particular incident on which your concentration has to be focused. All the rest really is peripheral in this case, you may think. Give the rest of the facts of this case such attention as you think that they merit, but that is the area on which to concentrate; those moments in the car park.”
But if the Jury were satisfied that the Appellant had dropped the packet of drugs, as by their verdict they showed themselves to be, to convict of possession with intent to supply they would have to be satisfied that the Appellant was in possession of that packet of drugs with the intention to supply that packet. The trial judge gave the Jury very little help on this latter point. He told them that the prosecution had to prove it had been the defendant’s intention to supply that cocaine to other people. He said that they were entitled to infer what a person’s intention was from the surrounding circumstances but should only draw inferences adverse to the defendant if the facts drove them irresistibly to that conclusion. He reminded them of the various facts that the Crown had relied on, which we will have to consider at greater length, but his only comment in relation to these facts were:
“It is plainly the defendant’s explanation for these various sums of money that they are the proceeds of his perhaps somewhat sporadic (on his account) dealing in motor cars. The Crown ask you to draw the inference that these not insubstantial sums of money are the proceeds of dealing in drugs. I addressed you yesterday about drawing inferences and the law applicable to that.”
It is in relation to those facts that Mr Fulford QC, for the Appellant, relies. He was not counsel at the trial. The course of the trial might have been different had he been.
When, subsequent to his arrest, the Appellant’s home was searched, no drugs were found there, nor any forensic trace of drugs having ever been kept there. The result of that search may be summarised.
(i) Three savings books were found, dealing with
accounts opened between 1984 and 1987. They were
all in credit to a total sum of £10,500. These were active accounts and various credits and withdrawals were dealt with in the evidence.
(ii) He was found when arrested to be in possession
of a Vodaphone registered in a name of his common law wife who was at the club at the time of his arrest, when he passed the telephone over to her. The prosecution did not seek to trace any of the calls made on that telephone.
(iii) His home was searched for drug dealing paraphernalia, and the only item that might have been such was a test tube containing traces of bi-carbonate of soda (apparently a substance used in the manufacture of crack cocaine). His common-law wife was to say that she had acquired this test tube to deal with urine samples when pregnant, and had cleaned it with bi-carbonate of soda.
(iv) £4,200 cash was found at his home, approximately half of which was found in the pockets of various jackets. £2,000 was under the mattress and the police would not have found it but for the fact that the Appellant told them it was there and showed them where it was.
(v) Various documents were found relating to the ownership of the BMW which the Appellant was driving. This was registered in the name of a third party (who was to give evidence at the trial) and the suggestion was that that name was an alias the Appellant used. Therefore he was lying when he said that the car was not his but belonged to another.
(vi) When the Appellant was being questioned as to his means, he had denied that he owned, or had any interest in, a house known as 19 Gascoyne Road. In fact, he inherited this property on the death of his mother some years earlier and lived partially off its rents. The suggestion was that he was concealing his wealth because he could not account for it, but this house he had innocently inherited.
This trial took place over five days, albeit interrupted by various bomb scares. The Appellant’s contention is that most, if not all, of the evidence was irrelevant and inadmissible in this trial, that the trial was dominated and finally overwhelmed, by that evidence, and that the judge gave the Jury no help in analysing whether that evidence was probative or not.
In fairness to the trial judge, it should be said that no application was made to him by the defence to exclude any of that evidence. The intention of the prosecution to rely on that evidence was clear from the depositions, and the defence called evidence to meet, or attempt to meet, all matters so raised. In the event, they called not only the Appellant but 11 other witnesses were either called or had their evidence read. The judge fairly summarised that evidence, but did not assist the jury at all in how it might assist them other than by giving them the general directions of law which we have already rehearsed.
The principles to be applied seem to us to be clear. They are these:-
1. The intention to supply must relate to the parcel of drugs that the Appellant was found to be in possession of.
2. In order to be admissible, the evidence would have to be relevant to that intention.
3. To be relevant, that evidence would have to be logically probative of that intention, i.e. that the evidence made his intention to supply those drugs more or less probable.
4. Evidence of marginal relevance may and should be excluded if it would lead to a multiplicity of subsidiary issues.
5. It is the duty of the judge, whether objection is taken or not, to ensure that irrelevant evidence (particularly when it is prejudicial to the defence) be not received in court. Should such evidence have been received, then the judge has the special responsibility to direct the Jury either to disregard it or how to treat it, as the circumstances require.
We turn to the evidence that was admitted in this case. Cases of this kind differ greatly the one from the other, each depends on its own facts, and in this passage of the judgment we merely seek to apply the general principles set out above to the facts in this case.
Clearly the test tube with traces of bi-carbonate in it was capable of being probative of an intention to supply the drug in question. The issue for them was whether its presence in the house was as part of the paraphernalia of drug dealing or whether the Appellant’s common law wife might have been telling the truth when she said it was for a medical sample. The judge dealt with this factual issue properly.
The next question relates to the loose cash found in the house. This court dealt with that problem in Wright (6th May 1993, unreported, 91/0973/Z2). There Beldam LJ said:
“The question for decision is whether the finding of such a large amount of cash is a fact which, if proved, makes it more probable that a person suspected of dealing in narcotic drugs, and who is found to be in possession of them, is in possession of them for the purposes of supplying them. In other words, does the fact that the possession of a large amount of cash tend to prove or render more probable the other facts the prosecution have to prove? That is, that the drugs were in his possession for the purposes of supplying them to another. It may be that in some cases the finding of a large quantity of cash, or the fact that there is a large quantity of cash available, is of comparatively little relevance. In others it may be a much more significant feature. It was described by Mr Wheatly, though not in entirely the correct context, as a question of proximity. There is no doubt that a finding of a large amount of cash is capable of being relevant to an issue the jury had to consider in this case and we reject the submission that this evidence was inadmissible because it was irrelevant.”
There a stock of drugs had been found at a co-defendant’s house,...
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