R v Martin (Colin)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MR. JUSTICE SIMON BROWN,THE LORD CHIEF JUSTICE |
| Judgment Date | 29 November 1988 |
| Neutral Citation | [1988] EWCA Crim J1129-1,[1987] EWCA Crim J1216-15 |
| Judgment citation (vLex) | [1987] EWCA Crim J1216-16 |
| Docket Number | No. 915/A3/88,No. 997/F1/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 November 1988 |
[1987] EWCA Crim J1216-15
Lord Justice Purchas
Mr. Justice Waite
and
Mr. Justice Tucker
No. 997/F1/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. T. SPENCER appeared on behalf of the Appellant.
MR. R. JACKSON appeared on behalf of the Crown.
REASONS FOR JUDGMENT
On 11th February 1987, after a trial lasting some twelve working days at the Grimsby Crown Court, this appellant was convicted and sentenced on six counts in an indictment charging him with burglary and was sentenced to two years' imprisonment on each count concurrent. He was also in breach of a suspended sentence of nine months, which had been imposed upon him on 12th April 1985. That period of nine months' imprisonment was activated to run consecutively to the sentences upon the counts of burglary. The total sentence of imprisonment imposed was therefore two years and nine months.
He appealed against the conviction, the trial Judge having certified the case as being one fit for appeal in respect of his exercise of discretion to admit certain evidence under the provisions of section 68 of the Police and Criminal Evidence Act 1984 ("the 1984 Act").
The jury returned verdicts of not guilty on three counts of burglary in the same indictment. In an earlier indictment containing similar counts, the appellant was jointly charged with one Paul Walker on counts equivalent to counts 2, 5, 6, 7, 8 and 9. Paul Walker pleaded guilty to the counts equivalent to counts 5, 6 and 7, but not guilty to other counts. These pleas were accepted and the trial proceeded upon a working indictment with the appellant alone as defendant.
The nine counts, with which the Court is concerned in this appeal, fell into three groups of three. The first group consisted of counts 1, 5 and 6, in the case of all of which no evidence was admitted under section 68, but upon which the jury returned verdicts of guilty. Count 1 charged the appellant with entering a motor vessel, the "Aberthaw Fisher", and stealing £30 in sterling and 105 Dutch guilders. This money belonged to the captain of the vessel, one John Smith.
John Smith gave evidence that his ship docked at Immingham at 11 a.m. on 11th January 1985. An hour or so later he discovered that his wallet containing about 100 guilders was missing from a drawer in his cabin. Other evidence was led to the effect that 105 Dutch guilders were exchanged on the same day at the Trustee Savings Bank, Immingham, and that a document recording the exchange was written by the appellant using the name Johnson.
The appellant denied being on the dock that day and asserted that he had exchanged the Dutch currency for someone he met in a hotel bar and that he had not given his own name because he did not want difficulties with Social Security officials, as he was not then working.
Count 5 of the indictment charged the appellant with entering a motor vessel, "M.V. Vignes", and stealing a wallet, £5.40 in sterling, 43 United States dollars and 600 Norwegian kroner, and various personal documents.
Miss Gurendal, the radio officer, gave evidence that on 15th October her wallet and purse were taken from her unlocked cabin. She had counted her money after a shopping trip the previous day and was sure as to the amount stolen, approximately 560 Norwegian kroner, 43 or 44 United States dollars and a few pounds sterling.
A dock worker, Nixon-Betts, gave evidence of seeing two men go aboard the M.V. Vignes shortly before seeing a young distressed woman who wanted to call security or the police. He described the men: one was tall and had a mark like a tattoo on his neck (alleged to be the appellant); the other one was shorter (allegedly Walker). An exchange slip for 560 kroner, 46 United States dollars and 20 Canadian dollars, dated 15th October 1985 and in the name of Paul Jones was not in Walker's handwriting.
The appellant gave evidence that he had gone to work in Wales for about four weeks some time in September; that he had never been on the M.V. Vignes; and that he had never been into a bank in Immingham with Walker to exchange money.
Count 6 of the indictment charged the appellant with entering on 4th November 1985 a motor vessel known as "Al Mubarakiah" and stealing 1,190 deutschmarks.
Captain Six gave evidence that 1,190 deutschmarks were taken from a drawer in his bedroom on 4th November 1985 and that he was certain of the amount involved. An exchange slip dated 4th November 1985 for 1,190 deutschmarks was written by Walker.
Bank staff gave evidence that the man who exchanged the money was accompanied by another man, tall, dark haired with a tattoo. The appellant denied the offence.
The counts in the first group relied upon direct oral evidence and the jury convicted.
The appellant's ground of appeal was that the jury's verdict on these counts was a verdict of guilty by association, as a result of the verdicts of guilty in the second group of counts, to which we now turn.
These were counts 2, 4 and 7, in each of which the learned Judge exercised his discretion to admit evidence under section 68 of the Police and Criminal Evidence Act 1984.
Count 2 charged the appellant with entering on a day between 12th and 15th May 1985 a motor vessel called "The Lotus Maru", and stealing 10,000 yen, 470 guilders and 20 United States dollars. The third engineer, a Mr. Takeshima, made a statement to the effect that the tanker had docked at Immingham and that at 5.30 p.m. on 14th May 1985 he had discovered that money had been taken from his wallet in his cabin. This consisted of 10,000 yen, approximately 470 Dutch guilders, two 10 dollar bills and £12 in sterling. The statement of Mr. Takeshima had been obtained by an investigating police officer on a witness statement form and was signed.
Oral evidence in support of this count was given by one Brown, a supervisor on the terminal. He testified that on the afternoon of 14th May he saw two men go into the living accommodation of the tanker from its cargo deck. They left the ship five minutes later. When they were 20 feet from him he asked their business and one man told him they were looking for work. Mr. Brown described that man as about 6 ft. tall, with a tattoo on his neck and had a Scots accent. This description fitted the appellant. He said also that although the terminal was open to the public it was unusual to see persons other than crew on a ship. Mr. Brown had seen the tattooed man again in the Mayflower public house. He had only seen a tattoo on one side of the man's neck.
An exchange slip, admitted to be in the appellant's handwriting, was produced in evidence recording the exchange of 476 guilders at Barclays Bank, Immingham, on 15th May. The name given was J. Johnson, and the address was the M.V. Blatence. Another exchange slip for 20 United States dollars and 10,000 yen recorded the exchange of this currency at the Midland Bank, Immingham, on 14th May 1985, but this was not in the appellant's handwriting. The name on the slip was given as Paul Walker.
The appellant denied the offence. He admitted changing the guilders which he had received, he said, from someone in a public house and that he gave £90 for them. He had not given his name because he was not working. He had visited the terminal a number of times but only by taxi. Although he did not see Mr. Brown on 14th May, he did use the Mayflower public house and Mr. Brown could have seen him there.
Count 4 in the indictment charged the appellant with entering as a trespasser, on 2nd July 1985, a motor vessel known as the "M.V. Mobil Endeavour", and stealing £71 sterling, 31 United States dollars and 40 Indian rupees.
The statement of Mr. Ambetkar, who was a radio officer on the ship, was read under the provisions of section 68. It recorded that on the morning of 2nd July six £10 notes, two £1 notes, one £1 note and a 20 dollar note, one 14 and one 20 rupee note and two 10 rupee notes were taken from his cabin.
A statement from the ship's captain was also read. This recorded that he was visited by a man looking for work on 2nd July at about 10.05 a.m. He described the man as about 5 ft. 10 ins., slim, short blond hair and and heavily tattooed on his arms.
The second officer, Mr. Naidu, gave oral evidence describing a man who asked for the master. He was tall with tattoos on his arms.
An exchange slip recording the exchange of £21 and dated 2nd July had been made out in the name of J. Martin and was admitted by the appellant to have been written by him. The appellant said that he was working on a Naval vessel in the Graving dock on 2nd July; that he had never been in a ship in the berth used by the "Mobil Endeavour", and that he had changed money obtained from a seaman in a pub. He further stated that he had used his own name because he was then in work.
In rebuttal the prosecution called a Mr. Hardacre, who produced records showing that the appellant started work for H. & S. (Painters) for the first time on 10th July, which was after the "Mobil Endeavour" had left Immingham.
Count 7 of the indictment charged the appellant that on 11th November 1985 he entered as a trespasser a motor vessel known as "M.V. Mela" and stole 424 United States dollars and a quantity of South Korean won.
The statement of a Mr. Yun Taegee, who was a member of the crew, was admitted under section 68. It recorded that Mr. Taegee, on his captain's instructions, had distributed advances of 500 dollars to eight members of the crew in the evening of 9th November 1985.
Another statement from a Mr. Lee, the third engineer on board, was also read. This recorded that in the...
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