R v Stephen Tully & Kevin Wood
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH |
| Judgment Date | 16 March 2006 |
| Neutral Citation | [2006] EWCA Crim 2270 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2005/5001/C1 & 2005/5090/C1 |
| Date | 16 March 2006 |
[2006] EWCA Crim 2270
Lady Justice Smith
Mr Justice Butterfield
Mr Justice Underhill
No: 2005/5001/C1 & 2005/5090/C1
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR J HARRISON appeared on behalf of TULLY
MR R SCAMARDELLA appeared on behalf of WOOD
MR R HALL appeared on behalf of the CROWN
On 15th August 2005 in the Crown Court at Lewes, the appellants were convicted of robbery on count 1 of the indictmentand both were sentenced to four years' imprisonment. On 10th August 2005, before the robbery trial commenced, Wood pleaded guilty to breach of an anti social behaviour order (ASBO). He also pleaded guilty to resisting arrest. For breach of the ASBO, Wood was sentenced to 9 months imprisonment, consecutive to the four year sentence. For resisting arrest, he received one month's imprisonment concurrent. The total sentence for Wood was four years and nine months' imprisonment. Both appeal against their convictions by leave of the single judge. Wood's application for leave to appeal against sentence was referred to this court. This part of the judgment deals only with the appeals against conviction.
In the early hours of 16th January 2005, the complainant, a man named Iida, was working as a taxi driver. He collected two men and two women and took them to an address in the Moulescoomb Estate near Nottingham. When they arrived at their destination, one of the women paid the £10 fare. The other woman dropped some change on the floor of the taxi. The group all looked for the money, helped by the complainant, but they found nothing. The two women left and went into a house nearby.
The male who had been sitting behind the complainant got out of the car, opened the driver's door and asked to look under the driver's seat for the missing money. But as he lent into the car he removed the money bag which was around the complainant's waist. The complainant protested but the second man threatened him with a knife. The two men took £130, the complainant's wallet, bank cards and an AA membership card.
The complainant watched the two men leave and go into a house nearby, referred to as No 96, and he kept watch on those premises until the police arrived. When the police went into No 96, they found the two appellants. They also found the complainant's waist bag, bank cards and AA card.
Police officers gave evidence that, when they searched No 96, they found the appellant Wood covered in clothing under a bed and the appellant Tully face down under a duvet on a bed. Tully had to be restrained following arrest and Wood escaped through a window and had to be caught. He put up a considerable struggle before he was arrested. A knife wrapped in clothing was found in a drawer in the hallway but there was no forensic evidence which connected it with these appellants.
It was the prosecution case that the appellants robbed the complainant as a joint enterprise. The defence case was alibi, although no alibi notices were served.
Following their arrest the appellants made no comment in interview. At an identification procedure the taxi driver failed to pick them out.
A former girlfriend of Tully's, named Danielle Brennan, provided the police with a statement saying that she and another woman had been with the appellants and had returned to the house by taxi that night. However, she proved unwilling to come to court to give evidence and, when brought to court, she indicated that she was not prepared to give evidence in support of the prosecution case. She was treated as a hostile witness. The content of her written statement was admitted under the hearsay provisions of the Criminal Justice Act 2003. She claimed that her statement had been extracted from her by the police. She claimed that none of it was true; none of the four of their group had been in the taxi; at the material time all of them had been inside the house, No 96, where the two men had been arrested. A police officer gave evidence denying that he had extracted the statement from her in the way that she had alleged.
Neither appellant gave evidence at the trial. Tully's mother gave evidence that she had spoken to her son twice at about the time that the robbery was taking place. She had telephoned the landline of No 96.
Before the trial, the prosecution had given notice of their intention to apply to put in the previous convictions of both appellants under section 101(d) of the Criminal Justice Act 2003. The notice should have been served in March 2005. In fact it was served in June but it was given some time before the trial.
Both appellants had bad records. Wood had two convictions for robbery in 1995 when he was only 15, four in 1997 when he was 16, and two in 1998 when he was 17. He is now 25. He had not been convicted of any further offences of robbery although he had many convictions for other offences such as burglary, theft, possession of an offensive weapon, taking vehicles and assault occasioning actual bodily harm, as well as driving offences, possession of cannabis and other minor matters. In all he had 26 convictions for offences of dishonesty. The last of his convictions was in January 2005 and was for theft. An offence of domestic burglary and one of aggravated vehicle taking committed in 2001 had been committed jointly with Tully. We should mention that, of his robbery convictions, several involved the use of a knife, not to cause injury but to threaten violence.
Tully had five convictions for robbery, the most recent of which had occurred in the year 2000. He also had 23 other offences of dishonesty. As with Wood, there was no recent conviction for robbery but the offences of dishonesty had continued until 2004.
The two important issues to which the convictions were said to be relevant were that each appellant had a propensity to commit offences of the type with which he was now charged. Also the appellants had, in the past, committed offences jointly and had that propensity as well.
The prosecution application was opened initially on the basis that it was intended to put each man's robbery convictions and the joint enterprise convictions before the jury. However, as soon as Crown counsel had said that to the judge, the judge asked why the Crown was limiting itself to the robbery and joint enterprise convictions. Counsel answered that he did not wish to overegg the pudding. The judge then pointed out that the appellants were going to argue that the robberies had taken place quite a long time ago. They were going to say they were too long ago to demonstrate a propensity. The judge then referred to section 103(2) of the 2003 Act which provides that propensity to commit an offence of the type with which the defendant is charged can be demonstrated by showing that he had been convicted of an offence of the same description or category. It appeared that the judge was encouraging the Crown to extend their application to include all the offence of dishonesty committed by both appellants. The court then adjourned for luncheon. In the afternoon prosecuting counsel adopted the judge's suggestion and extended his application to include all the offences of dishonesty of both appellants.
The prosecution had come to the trial prepared to show the judge the circumstances of the robbery and joint enterprise offences. They had not brought all the details of the other offences. The judge thought that that did not matter and said that the offences spoke for themselves.
Mr Scamardella, who appeared for Wood at the trial as he has in this court, opposed the application submitting that the robbery offences were not recent enough to show propensity. But, said the judge in response, the other offences of dishonesty were more recent. Counsel referred the judge to the case of Hanson [2005]EWCA Crim.824 and submitted that the prosecution was seeking to bolster a weak case by admitting all the previous convictions. The judge plainly did not think that the case was weak.
Mr Harrison, who appeared for Tully at the trial and before this court, mentioned the lateness of the notice of application. He complained that, until late that morning, the defence had believed that the application related only to the robberies and joint enterprise offences. They now found that it was being put on a much wider basis. It was true, as the judge pointed out, that the written application was non-specific; it said only there would be an application to admit previous convictions. However the accompanying detailed information related only to the limited range of offences. There were no details of the offences of dishonesty and, Mr Harrison complained, he had not had the opportunity to take full instructions from his client. In any event, he submitted, not all the offences of dishonesty showed a propensity to commit robbery. The judge replied that it was sufficient for the Crown to prove a propensity to acquire other people's property by one means or another. Counsel submitted that the offences of dishonesty covered too wide a spectrum of conduct to prove a propensity to commit the kind of offence charged, namely robbery. He adopted Mr Scamardella's submission that the Crown were seeking to bolster a weak case. He explained that the defence was suspicious that the Crown had made this application late in the day only since they had discovered that Miss Brennan was not a willing witness in support of the prosecution case. Counsel also submitted that the fact that the two men had committed two offences together on a single occasion in 2001 was not sufficient to show that...
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