R v Wallace (James Andrew)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 16 July 2007 |
| Neutral Citation | [2007] EWCA Crim 1760 |
| Docket Number | Case No: 200605245 D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 July 2007 |
[2007] EWCA Crim 1760
Lord Justice Scott Baker
Mr Justice Mitting and
The Recorder of Swansea
Case No: 200605245 D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
(Judge Stokes Q.C.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Aina for the Appellant
Caroline Bradley for the Respondent
Hearing dates: 18 May 2007
Judgement
These are the Court's reasons for dismissing the appeal against conviction of James Andrew Wallace. The appellant was convicted before Judge Stokes Q.C. and a jury in the Crown Court at Nottingham on 15 September 2006 of three offences of robbery and one of attempted robbery. Arising out of the same incidents he was also convicted of four offences of possession of an imitation firearm and one of unlawful wounding. He was sentenced to imprisonment for public protection with the minimum period to serve of 7 years and 381 days.
The case concerned four armed robberies (in one of the cases an attempt only) of small retail businesses in the Nottingham area in September/early October 2005. Three of the premises were shops, the fourth a bookmaker's. The case against the appellant depended on circumstantial evidence, the Crown's case being that there were common features to the robberies and that the appellant was a party to each of them although not necessarily present when the robbery was committed. He was involved in their organisation. The appellant did not give evidence. His case was that, viewed individually, there was insufficient evidence to convict him of any of the robberies.
The problem that has arisen in the present appeal is due to the “bad character” provisions in the Criminal Justice Act 2003 (“the 2003 Act”). Under the old law, before the provisions of Part 11 of that Act came into force, the issue in this case would have been quite simply whether the circumstantial evidence was strong enough to justify the conviction of the appellant of each of the offences. But, it is submitted on behalf of the appellant, the position has now changed. The definition of “bad character” in s.98 of the 2003 Act is such that the prosecution should have made an application under s.101 to admit the evidence and the judge should have ruled upon it. This point was not in the original grounds of appeal. We shall return to it later.
The facts
We turn to describe briefly the facts of the four robberies.
Robbery 1 was of Standhill Stores, Carlton. The store was owned by Mr and Mrs Basra. The robbery occurred at 7.50pm on 10 September 2005 when Mrs Basra was alone in the store. Four masked males burst into the premises. Three had weapons; one of those weapons appeared to be a handgun which was pointed at Mrs Basra. One of the robbers was wielding a metal bar about 3 1/2 feet long. Money was taken from the till and alcohol and cigarettes from the shelves. Mrs Basra escaped outside the store and the robbers left, kicking Mr Basra to the ground as they went. Left in the shop was a bed sheet filled with items that the robbers had no doubt intended to take, a black holdall and a crowbar. An eye witness saw a blue Saab car outside the store when the robbery was taking place. The car was stolen. There was someone in the car during the robbery. One of the robbers fled to it after the robbery and the car was later found abandoned in Taylor Grove.
A Ribena bottle was recovered from under the front nearside seat. DNA was found on swabs taken from the bottle; it matched that of the appellant. Also recovered from the rear offside door pocket of the car was a broken piece of mirror. The front of the mirror bore a fingerprint that was later identified as having been made by the appellant.
Robbery 2 was of Booze Busters at approximately 9.45pm on 30 September 2005. Four masked males burst into Booze Busters and Philip England, his wife and a shop assistant, were forced to the floor. The robbers left with cash, alcohol and cigarettes. The shop assistant, James Elite, noticed that one of the males was wearing a black balaclava and was in possession of a metal pole. He also recalled two other males wearing black clothing and balaclavas. There was CCTV of the robbery. In the photographs a male can be seen wielding a gun. The male has a strap around his neck for a mobile phone. On the strap a short name can be seen. When the appellant was arrested on 2 October 2006 he was found to be in possession of a similar phone strap with the name James upon it. He was also wearing trainers, which the Crown claimed were similar to the ones that could be seen on the CCTV pictures.
Robbery 3 was of Larkdale Stores. Mr Lunn was in his shop at approximately 8pm on 1 October 2005 when three masked males entered the premises. One had a firearm, another was brandishing a pole. Mr Lunn reached the conclusion that the gun was an imitation and resolved to fight back. He grabbed the pole from one of the robbers and began chasing them. During the robbery carrier bags from a holdall fell to the floor. Mr Lunn was aware of one of the robbers shouting to another, “Germs, Germs, Germs.” Germs was a name by which one of the robbers was known. During the assault Mr Lunn was hit and required 55 stitches to 8 head wounds. The gun was recovered from the home address of Hallam Walker-Smith who pleaded guilty to one offence of assisting an offender. The gun was examined and DNA from Mr Lunn was found on it. One of the carrier bags was forensically examined and bore the appellant's fingerprints. Shoes seized from the co-defendant Jonathan Scott revealed blood staining emanating from Mr Lunn. The appellant's palmprint was found on another of the carrier bags and a fingerprint was also found on the inside of the same carrier bag which emanated from Nathanial Skerritt, to whom we shall refer in more detail in a moment.
Robbery 4 was of Ladbrookes. On Saturday 1 October 2005 Holly (aged 16) and Chelsea Palmer (aged 15) were holding a party while their parents were away. An Alfa Romeo was stolen from outside the house. At 3pm on 2 October 2005 three masked men burst into Ladbrookes, one carrying a gun which was aimed at an employee, Tracy Dowling. The robbers left empty handed as new toughened glass had been installed following a previous incident. Tracy Dowling pressed the panic alarm before leaving the premises. Robbers were seen to leave in the stolen Alfa Romeo. At 3.30pm armed police officers spotted the vehicle and attempted to slow it down. The vehicle was pursued and eventually involved in a collision and the occupants ran off. Scott was arrested running away from the scene. A second person made good his escape. As officers were examining the vehicle the appellant appeared on the scene. He was arrested. His mother lived nearby.
There were three co-defendants. Jonathan Scott, aged 18, pleaded guilty to the offences arising out of robberies 2, 3 and 4 i.e. those other than Standhill Stores. Hallam Walker-Smith, aged 17, pleaded guilty to retaining an imitation firearm with intent to assist Scott. Nathanial Skerritt, aged 19, was discharged on the judge's direction in respect of the offences relating to robbery 3. When interviewed the appellant declined to answer any questions.
The following circumstantial evidence implicated the appellant. As to robbery 1, the stolen Saab seen outside Standhill Stores and to which one of the robbers fled had two connections with the appellant. First there was the DNA on the Ribena bottle and secondly his fingerprint on the broken piece of mirror. The car was later found abandoned near to where the appellant was living at the time.
In robbery 2 the man wielding the gun matched the general description of the appellant. More particularly, he had around his neck a mobile phone on a strap. The strap appeared from the CCTV to have a short name on it and when arrested the appellant had in his pocket a mobile phone attached to a strap with the name “James”. He was wearing trainers that were similar to those on the CCTV picture of the robbery.
As to robbery 3 the robbers left behind a gold plastic bag bearing a print of the appellant's right middle finger. Another bag left at the scene contained his palm print (together with the prints of Skerritt).
As to robbery 4, it was admitted that the appellant had been at the premises on the morning of the robbery. After the robbery a stolen Alfa Romeo was seen leaving the premises with the robbers in it. After it had crashed, following a chase by the police, the appellant appeared and was arrested. The vehicle had been travelling in the direction of where he was living.
It was common ground that there were similarities about the robberies. They were all in the same area, close in time and similar handguns were used. The robbers wore balaclavas and coats with fur trim round the hood. In two of the robberies a metal pole was used. Scott pleaded guilty to each of the 4.
The first ground of appeal relates to an application by the appellant before Judge Milmo Q.C. on 17 March 2006 under para 2(1) of Schedule 3 to the Crime and Disorder Act 1998 to dismiss charges. The judge had to consider the Larkdale and Standhill robberies and the Ladbrookes attempted robbery i.e. robberies 1, 3 and 4. As the judge pointed out, Schedule 3 to the 1998 Act lays down the procedure to be followed where a charge is sent to the Crown Court under s.51 and there is an application to dismiss.
Paragraph 2(2) requires the judge to dismiss the charge if it appears to him that the evidence is not sufficient for a jury...
To continue reading
Request your trial
-
R v Mitchell
...… [Counsel] did not pursue the first limb. He was right not to do so. It was unarguable in the light of the decisions of this court in [ R v Wallace [2007] 2 Cr App R 30; R v DM [2009] 1 Cr App R 10, and R v Freeman [2009] 1 WLR 2723]." 49 In light of what I have said at para 43 above, I ob......
-
Curtis Esprit, Christopher Sorhaindo and Fareed Rasheed, v R
...small businesses, and counts 2 and 3 were committed only a few months after the robbery in count 1. 35 Ms Dempster had taken us to R v Wallace [2007] EWCA Crim 1760; [2007] 2 Cr App R 30 which was referred to by the judge in his short ruling on cross-admissibility, and which ultimately res......
-
R v N (H)
...support for the other, one example of what is now commonly called "cross-admissibility": see, further, DM [2008] EWCA Crim 1544, Wallace [2008] 1 WLR 572, [2007] EWCA 1760 and Freeman and Crawford [ [2009] 1 Cr App R 11, [2008] EWCA Crim 1863. "Cross-admissibility" 30 The admissibility of......
-
R v Cyril Woolf
...been considered by the courts on a number of occasions: see for instance Chopra [2006] EWCA Crim 2133; [2007] 1 Cr App R 16; Wallace [2007] EWCA Crim 1760; [2007] 2 Cr App R 30; McAllister [2008] EWCA Crim 1544; [2009] 1 Cr App R 10; and finally Freeman and Crawford [2008] EWCA Crim 1863......
-
Misconduct That ‘Has to Do with the Alleged Facts of the Offence with Which the Defendant is Charged’ … More or Less
...the particular circumstances of each case’: R v Hanson [2005] EWCA Crim 824,[2005] 1 WLR 3169 at [4], per Rose VP.58 R v Wallace [2007] EWCA Crim 1760, (2007) 171 JP 543 at [27]–[28], per ScottBaker LJ: ‘[T]he four robberies, although charged individually, cannot beconsidered in four separa......
-
Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
...HCJAC 73; 2009 JC 88 (cf Lord Eassie’s dissent and KvHM Advocate ibid).45 Compare RvMcGranaghan [1995] 1 Cr App R 559 and RvWallace [2007] EWCA Crim 1760;[2008] 1 WLR 572.46 The conclusion reached in the Report, para 6.96.Findlay Stark© 2013 The Author. The Modern Law Review © 2013 The Mode......
-
Bad Character Evidence and Reprehensible Behaviour
...at [19]; RvFrancis-Macrae [2006] EWCA Crim 2635 at [17]; RvTirnaveanu [2007] EWCA Crim 1239,[2007] 1 WLR 3049 at [21]; RvWallace [2007] EWCA Crim 1760 at [26].9 Law Commission, above n. 2.10 Ibid. at para. 4.84.11 [2005] EWCA Crim 2866, [2006] 1 WLR 1885 at [95]. The court stated th at ‘onc......
-
Mental Gymnastics and Intellectual Acrobatics: The Meanings of Statutory and Common Law ‘Bad Character’
...counts the evidence whichgoes to suggest that he committed count 2 is, so far as count 1 is concerned, 32 Above n. 31 at [24].33 [2007] EWCA Crim 1760.34 [2006] EWCA Crim 2133, [2007] 1 Cr App R 225.35 [2007] EWCA Crim 1760 at [21].36 Ibid. at [27].37 Ibid. at [35].38 Strictly speaking leav......