R v Morri
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE MORLAND |
| Judgment Date | 14 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1014-19 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 93/4068/Z4 |
| Date | 14 October 1994 |
[1994] EWCA Crim J1014-19
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Rose Mr Justice Morland and Mrs Justice Steel
No. 93/4068/Z4
MR S PENTOL appeared on behalf of the Appellant
MISS M J MOWATT appeared on behalf of the Respondent
Friday 14th October 1994
Mr Justice Morland will give the judgment of the Court.
On 29th June 1993, at the Crown Court at Kingston upon Thames before his Honour Judge Macrea, the appellant was convicted of being in possession of a class A drug (heroin) with intent to supply and sentenced, on 22nd February, 1994, to seven years' imprisonment.
A drug trafficking confiscation order was made in the sum of £32,651.06, 18 months' imprisonment, consecutive, being imposed in default.
The applicant renews her application for leave to appeal against conviction following refusal by the Single Judge. This Court allows the application and treats the hearing of the application as the hearing of the substantive appeal.
The appellant was arrested as part of a lengthy surveillance operation on 29th January 1993 at her parents' address, 79 Swaby Road, London SW18 She was said to be holding a number of bags including her handbag containing £102 cash and £991.17 in a purse and a white carrier bag containing £5000 cash.
She was said to run into the house as plain-clothed police officers decamped quickly from their car, dropping all of the bags outside the house, save the white carrier bag which she dropped inside it. She was arrested in an upstairs toilet, the door of which had to be forced open. The suggestion was that she went there to flush the heroin down the W.C.
During the course of a strip search at Tooting Police Station, 17.74 grammes of heroin contained in individual wraps of between 54% and 64% purity was said to have been retrieved from the inside the appellant's bra.
During the course of a search of the appellant's home address at 22 Newbridge Court, London SW17 carried out simultaneously to the arrest, various quantities of cash and a red Notebook containing names and figures, some of which were crossed out, were seized.
The appellant denied carrying the white carrier bag and the existence of the heroin in her bra, claiming that the police had fabricated this evidence. She gave evidence herself and called in particular her mother on her behalf in support of her contention that she did not carry the carrier bag and that the monies and notebook were not related to dealings in drugs, but to dealing in jewellery and stolen clothes. Her father in his evidence described the appellant as a "crook all her life".
At the trial Miss Mowatt, who also appeared before us, applied to adduce in evidence as part of the Crown case evidence of the appellant's lifestyle, including photographs of her luxuriously furnished home. That application was rejected by the trial judge.
However, Miss Mowatt succeeded in her application for leave to adduce the evidence of the amounts of money found in the dropped bags and at her home and of the red notebook.
Miss Mowatt told us, as we accept, that the basis of her submission was that the evidence that the appellant dropped the bags containing money in panic and of the money and notebook at her home was evidence not merely that she was a drug dealer, which would be solely prejudicial and not probative, but was consistent and tending to confirm the evidence of the police officers that they found heroin in her bra. In our judgment, the appellant's escape to the toilet could have the same confirmatory tendency.
Mr Pentol, who appeared for the appellant before us and at the trial, submitted to the judge that the evidence of the money and notebook was inadmissible. It was solely prejudicial. It was irrelevant and of no probative significance to any disputed issue in the trial because it was conceded on the appellant's behalf that there was no dispute that if the jury believed the police that the heroin was secreted in her bra, the appellant could only have been in possession of it with intent to supply to another by reason of the amount of heroin.
In his Ruling the Judge said:-
"In my judgement this is a matter for the jury's consideration. What they make of it is entirely a matter for them. They will, of course, as Mr Pentol has rightly said, be told they should not speculate. They can only draw inferences. Whether they would be prepared to draw the inference that the Crown seek to persuade them is what they are there to decide."
Unfortunately, the Judge in his Ruling did not spell out the inferences which he considered were capable of being drawn by the jury from the evidence which he was ruling admissible. He should have done, in our judgment, so that it was clear to the Crown and the Defence what, in the judge's view, was the relevance of the admitted evidence.
During the Defence case several witnesses were called and much evidence given about the monies and the notebook.
However, when the Judge summed up he seems to have been indicating that the evidence was irrelevant or almost irrelevant. Its prejudicial effect on the jury must have been serious and obvious.
In his summing-up the judge said:-
"…..the prosecution's contention in relation to this quantity is that it must be for commercial purposes. You have a substance which, at street level, is worth £1,700. It weighs just over half an ounce.
There is no suggestion that this defendant is a user of heroin. The issue in this case,…..is possession. Did she have it in her bra, or may it be that [the police officers] are lying about events well before the search of the defendant's home address was concluded? Possession —that is the issue in this case. Mr Pentol indicated that there is no concession that she was in possession but, equally, it is not suggested that a person in possession of that sort of quantity is not intending to dispose of it to supply."
At the conclusion of his Summing-Up the Judge said:-
"…..although there are some peripheral issues about the red notebook and money and so on and so forth, really it concerns the evidence that you have heard from four ladies about events at Tooting Police Station; that is at the heart of the issue in this case.
Are you sure that the exhibit, BN/1, was in the defendant's bra? If yes, then she is clearly in possession and the question of intent is not in issue; it is not suggested, by Mr Pentol, that that quantity would be for anything other than supply. If you are not sure that she was in possession of it, then your verdict is not guilty. What your verdict is depends upon your view of the facts."
In our judgment, the failure of the Judge to spell out the probative significance (if any) of the evidence about the monies and the notebook may well have led the Jury to adopting the dangerous approach "we conclude that the appellant was a drug dealer and therefore we believe the police when they said that they found the heroin secreted in her bra".
Such an approach renders the verdict unsafe and unsatisfactory.
In argument we were referred to the transcripts of two decisions of this Court to which the trial judge was not referred.
R. v. Joan Margaret Batt (25th March 1994) when the judgment of the Court consisting of Saville L.J., Rougier and Stuart-White J.J.) was given by Saville L.J.
R. v. Howard Kingsley Wright (6th May 1993) when the judgment of the Court consisting of Beldam L.J., Ebsworth and Tuckey J.J. was given by Beldam L.J.
In both these two cases the defendants, like the present appellant, were charged with possession of drugs with intent to supply. In both cases the question for this Court was whether evidence of money prima facie under the defendant's control found by the police or Customs Officers was admissible.
In Batt's case the Court held that the evidence was not admissible but in Wright's case that is was.
In Batt's case Saville L.J. set out the facts at page
2A-E:-
"On 4th June 1992 the police arrived at the appellant's home with a search warrant. There were, in fact, nine police officers. They found just over 500 grammes of cannabis (i.e. enough to make about 3,000 cigarettes) in a rabbit hutch which was inside a dog kennel at the bottom of the garden. In the house the appellant voluntarily showed the police officers an egg cup which had about 2 grammes of cannabis in it. The appellant also produced a set of scales and weights to the police. Later forensic examination revealed traces of cannabis resin on the scales. The police also found £150 in notes in an ornamental kettle in the house. The appellant told the police that the cannabis in the egg cup belonged to her husband —but that she knew nothing at all about the cannabis found in the garden."
At page 3 Saville L.J. said at A-C:-
"This first point concerned the question of the money which the police had found. At the trial, before this evidence was adduced, Mr Sweeney on behalf of the appellant, submitted to the learned Recorder that she should not admit the evidence of the money found by the police. However, the learned Recorder decided to do so, although we are bound to say that it is not entirely clear from the transcript on what basis this was done."
The same situation occurred in the present appeal.
The Lord Justice went on at page 3F-G:-
"…..Mr Sweeney submitted, the evidence could be highly prejudicial, with no probative value at all, because the jury could infer from the possession of that sum of money by a lady with young children on Supplementary Benefit, that she had been busily engaged in drug dealing, not...
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