R v Guney
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE |
| Judgment Date | 27 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0227-4 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 96/5772/Z4 |
| Date | 27 February 1998 |
[1998] EWCA Crim J0227-4
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2A 2LL
Lord Justice Judge
Mr Justice Poole
And
His Honour Judge Rant Cb Qc Jag
(acting as a judge of the Court of Appeal Criminal Division)
No. 96/5772/Z4
MR EDMUND LAWSON QC and MR PAUL KELEHER appeared on behalf of THE APPELLANT
MR DAVID JEREMY appeared on behalf of THE CROWN
( )
Friday 27 February 1998
On 23rd July 1996 in the Crown Court at Snaresbrook before His Honour Judge Elwen and a jury the appellant was convicted of possessing a controlled drug of class A (heroin) with intent to supply and sentenced to 10 years imprisonment. He was also convicted of possessing a firearm and ammunition without a firearms certificate and sentenced to 4 years imprisonment on each count to run concurrently with each other but consecutively to the sentence for possession of heroin with intent to supply. He appeals against conviction with leave of the single judge.
The facts are deceptively simple.
On 29th September 1995 at about 8.30 am a team of six police officers from No 3 Area Drugs Squad led by DS Stobbs went to the home of the appellant at 44 Killington Gardens, Ilford, Essex with a warrant to search for drugs. Three of the police officers who accompanied him, DS Osborne, DC Gillan and DC Popham had formerly been members of the notorious No 3 Area Drug Squad based at Stoke Newington. The house was in the process of redecoration. The door was open. As they entered the house the defendant was using his mobile telephone. He was invited to finish the telephone call. He then handed to the police the card of Detective Inspector Scully in the Metropolitan Police in the National Crime Branch and invited them to ring up Mr Scully before doing anything else. He was told that the premises would be searched anyway and responded that "it was a set-up".
Owing to the redecoration programme the rear bedroom was being used as the appellant's bedroom. After the front bedroom had been searched DC Stevens searched the rear bedroom with other officers, DS Jack, Osborne, and the appellant himself who was present throughout. At about 8.40 am in the bottom right hand shelf of a fitted wardrobe at the head of the double bed a cardboard box containing £24,815 in cash, hidden under some towels, was discovered. The appellant said that the cash belonged to him, the result of "buying and selling off the record". Close by, in the left side of the same wardrobe, a handgun with live .22 ammunition in the magazine and three further boxes with 140 rounds of live ammunition were discovered. Although partly covered by some T shirts the gun was not wholly concealed. In the top of the same wardrobe a carrier bag containing a holdall itself containing five plastic bags was discovered. Again, it was not well concealed. The five plastic bags contained what on examination proved to be 4.99 kilos of heroin of 58% purity, with a value of between £100,000/£125,000 wholesale, or about £750,000 on the street.
The appellant's finger prints were found on the carrier bag which, in interview, he said was probably his bag. He claimed that he knew nothing about the heroin or the firearms and ammunition and repeated that he was the victim of a "set-up". He did not suggest that the firearms and heroin had been "planted" by the police.
Two valuable cars, a Rolls Royce and a Bentley, parked in the driveway, were also searched.
The appellant was taken to Barkingside police station. He was interviewed by Osborne and Stevens in the presence of his solicitor and solicitor's clerk. He said that the cash had come from work he had done in the past and that it was money he had been putting aside "to have the house done". He was bankrupt, so he kept the money at home. It was his money saved over about a year. He was not earning anything, and was paying off debts. He explained that the decorators had the run of the house all day. When asked who was responsible for putting the drugs and gun in his home he said that he had "loads of suspicions" and "a very good idea" but he could not say how or when. He added that he was involved "in a big case against very big people". He returned to the security of his house indicating that one of the builders had "some way" of entering by the back door. There was a weakness in his security. When asked why he continued to keep £25,000 in cash, unlocked and unconcealed, he said that he had put an alarm on the house. He identified two former business partners with whom he was in substantial dispute who had caused his arrest for conspiracy to kidnap and who had plotted to kill him by employing a contract killer. He identified him, a man called Williams. He identified another "hit man" as one of the "largest heroin dealers" in the country.
The interview was peppered with references to his, and his family's affluence. The true value of his business ran into several million pounds. He had made his first million by the time he was 25. He explained the substantial value of his business and asserted that he did not need money that badly. This material was put before the jury at trial without objection from the defence. He had reported matters to the police and they were being investigated by DI Scully. When interviewed on the following day he said that he was shocked at what had happened. He knew this would happen. He was a victim of an ongoing murder plot. He then proceeded, on his solicitor's advice, to make "no comment" to a number of questions. When it was explained to him that although the solicitor was advising him, before the officer could finish by pointing out that it was still up to him, he said "how do I know you don't work for the other side and you ain't been paid. Why are you laughing, that's a serious question", adding, "you put yourself in my situation. How do I know you haven't been paid?" This was not pursued as a serious suggestion. He wanted to know whether DS Osborne had spoken to Scully. He explained that if he did not see Scully he spoke to Johnston. He claimed that he had been set-up, in effect, as an alternative to arranging his murder. He added that these people were "professional top dealers …. not even the police can mess with these people. I'm just another person that they've fried".
There was no suggestion that this interview was unfairly or improperly conducted or that any police officer had invented or fabricated any of the answers attributed to the appellant.
The issue at trial was whether the heroin and firearms undoubtedly found in his bedroom were in his possession or whether they had been put there without his knowledge by his enemies. Despite its apparent simplicity this proved to be an unusual and complicated case and by the end of the trial in addition to all the other issues which arose the jury were effectively deciding whether the appellant had manufactured a false defence with the assistance of two untruthful police officers, Scully, who is now retired, and Johnston.
Following the appellant's conviction two critical areas of the case have been explored on appeal, first, in relation to non-disclosure of relevant material by the Crown and second, arising from the evidence about the cash found in the appellant's bedroom and his possession of luxury cars (described in shorthand during the course of argument as his lifestyle).
The admissibility of evidence relating to lifestyle and cash will be considered later in the judgment. To understand the issues relating to disclosure a further detailed narrative of events is necessary.
As indicated in his interviews, before his arrest the appellant had made a number of serious allegations against his former business partners, and they had reciprocated by making allegations of similar seriousness against him. In December 1993 the appellant was arrested and with two others was charged with conspiracy to kidnap. The complainants refused to give evidence against him and the charges were not pursued. The appellant believed that his allegations against his former business partners had not been adequately pursued by the local police to whom he had reported his complaints. He therefore contacted police officers at New Scotland Yard to explain his concerns and, in order to underline his abhorrence of heroin and drugs generally, offering to act as an informer in relation to drug dealing. We note that it is not unknown for significant drug dealers to offer to act as informers: this can provide a powerful screen for their own activities and assist to muddy the waters if they are discovered. The officers with whom the appellant dealt were Scully and Johnston. At one stage they arrested one of the appellant's former partners on suspicion of incitement to murder but owing to lack of evidence did not charge him. Immediately after the appellant's arrest Scully and Johnston were contacted both by his solicitors and arresting officers. It subsequently emerged that the relationship between Scully and Johnston and the appellant and his father was, to put it no higher, highly unorthodox. For example an enquiry run by Scully was abandoned in order to investigate the appellant's allegations. There was virtually daily contact between Scully and the appellant for which no proper records were kept. The officers in charge of the earlier enquiries into the appellant's allegations were not consulted. On 2nd October Scully and Johnston attended the appellant's first court appearance before the magistrate at the request of the defence and without, as required, approaching or obtaining permission from the officer in charge of the instant investigation. During the course of the appellant's...
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Subject Index
...Osman[1990]1 WLR 277. . . . . . . . . . . . . . . . . . . . . . 293R vGrandinetti [2005] 1SCR 27 . . . . . . . . . . . . .69R vGuney [1998] 2Cr App R242 . . . . . . . . . . . . . 55R vGyima [2007] EWCACrim 429 . . . . . . . . . .281R vH [1995] 2AC 596 . . . . . . . . . . . . . . . . .280, 2......
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Cases
...1 WLR 1513 87R vGovernorof BrockhillPrison,ex p Evans(No.2)(1998) 4AllER 993 204R vGreatrexand Bates (1999) 1 CrAppR126 568R v Guney (1998) 2 CrAppR 242 117CasesR v H (Henry) (1998) 2 Cr App R161 31R v HarrowCC,ex pPerkins(1998) 162 JP527 11R vHarvey(1999) 1AllER 710 349R vHerefordMC,ex pMa......
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Cases
...1 WLR 1513 87R vGovernorof BrockhillPrison,ex p Evans(No.2)(1998) 4AllER 993 204R vGreatrexand Bates (1999) 1 CrAppR126 568R v Guney (1998) 2 CrAppR 242 117CasesR v H (Henry) (1998) 2 Cr App R161 31R v HarrowCC,ex pPerkins(1998) 162 JP527 11R vHarvey(1999) 1AllER 710 349R vHerefordMC,ex pMa......
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Fair's Fair?
...since RvStorey14 that careful direction about theE & P 55FAIR’S FAIR?6 [2001] UKHL 25, [2002] 1 AC 45 at [35].7 E.g. RvGuney [1998] 2 Cr App R 242 at 260A.8 E.g. RvDoosti (1985) 82 Cr App R 181 at 185.9 [2004] EWCA Crim 3252, [2005] QB 996.10 There so emphasised at [32].11 [2007] EWCA Crim ......