Wayne Lee Shillam v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 22 February 2013 |
| Neutral Citation | [2013] EWCA Crim 160 |
| Docket Number | Case No: 201204629 C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 February 2013 |
[2013] EWCA Crim 160
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HHJ Henderson
T2011 7698
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
Mr Justice Griffith Williams
and
MR Justice Stuart-Smith
Case No: 201204629 C3
Mr Philip Brunt instructed for the Appellant
Mr Anthony Potter instructed for the Respondent
Hearing date: 19 February 2013
On 9 July 2012 at Birmingham Crown Court before HH Judge Henderson the appellant was convicted of conspiracy to supply cocaine. The particulars of the offence alleged in the indictment were:
"JERMAINE ROBB, WAYNE SHILLAM and NATHAN REID between the 16 th day of March 2011 and the 13 th day of July 2011 conspired together and with Ned Stirling DEAN and Darren John VIZARD and with others unknown to supply class A drugs namely cocaine to another."
The appellant was given leave to appeal on the single ground that the direction given by the judge in response to a note from the jury allowed the possibility that the appellant and his co-accused were convicted of the offence charged without the jury necessarily being sure that they were all guilty of the same conspiracy. The appellant also renews his application for permission to appeal on the ground that the judge failed properly to direct the jury as to the need for proof both of the conspiracy alleged and of the appellant's participation in it. The complaint made under this head is linked with the complaint made about the judge's response to the question from the jury and we give leave for the appellant to advance it.
The prosecution's case was based on surveillance, telephone evidence and material obtained on the arrest of suspects. Robb was alleged to be the central character. Cocaine was cut and prepared at 151 Slade Road, Sutton Coldfield. On 6 April 2011 Robb was seen to make a delivery at that address. The prosecution asserted that he was delivering cutting agents. Next day the premises were raided. Dean and Vizard were present. The police found 225.8g of cocaine together with benzococaine and phenacetin, which are well known cutting agents, and a hydraulic press. Dean and Vizard were subsequently convicted of possession of cocaine with intent to supply.
The appellant and Reid were both alleged to be regular purchasers of cocaine from Robb for onward sale.
In the case of the appellant, on 6 April 2011 a van with two occupants was seen to stop beside Robb's car at a car park. One of the occupants got into Robb's car briefly and then returned to the van. The van was driven off but was stopped shortly afterwards by the police. The appellant was the driver and in it was 6.99g of cocaine. Examination of the appellant's phone revealed a number of text messages from people wanting to buy cocaine from him, and showed also that he was in frequent phone contact with Robb but not with any other alleged conspirator.
In the case of Reid, on 23 March 2011 Robb was seen to get into the passenger side of a car registered in the name of Reid. He got out of the vehicle two minutes later and put a large bundle of cash in his pocket. Reid's home address was searched on 28 April 2011. He had 1.4 kg of benzococaine and 245g of lignocaine, as well as a quantity of cannabis and �1,545 in cash. Examination of his phone revealed a number of text messages suggesting that he too was dealing in drugs, and that he too was in regular phone contact with Robb.
The prosecution's written case summary concluded:
"It is not asserted that Reid and Shillam knew each other but both knew Robb and obtained their drugs from him in order to cut up and sell to others."
Mr Potter confirmed that this was how the case was presented to the jury, except that it was not suggested that the appellant was involved in the cutting up of the drugs. His role was that of a purchaser of drugs from Robb, which he sold on to sub-buyers.
Before summing up, the judge wisely provided counsel with a draft of directions which he intended to give to the jury. The proposed directions identified the critical question as follows:
"�did the particular defendant whose case you are considering agree with at least one other person at some point during the period on the indictment that cocaine should be supplied to someone else?"
Overnight Mr Brunt on behalf of the appellant produced written submissions in which he suggested, by reference to the analysis of the law of conspiracy in D [2009] EWCA Crim 584, that the jury should be asked:
"Has the prosecution proved that the five named individuals all agreed to be part of a single plot to dilute and distribute cocaine?"
The judge declined to vary his proposed direction. Mr Brunt's suggestion that the jury could only convict any defendant if they were sure that all five named individuals were guilty of the conspiracy alleged was incorrect; but his submission and his reference to D did have the merit of pointing to the need to identify the scope of what was charged by the prosecution as a single conspiracy.
The judge's summing up did not contain any summary of how the prosecution put its case as to the scope of the alleged conspiracy, or make any mention of the matters relied on to show that the appellant and Reid were not merely separate buyers from Robb but rather were parties to a wider conspiracy.
In his general directions the judge said that the real issue in the case could be summed up in one sentence, which he expressed in the same way as he had indicated that he proposed to do.
After retiring to consider their verdicts, the jury sent the judge a note in the following terms:
"Conspiracy, does it have to be between any two of Robb, Shillam or Reid or can it be any one of Robb, Shillam and Reid plus persons unknown? "
The judge raised the matter with counsel. Mr Brunt referred again to D and to the question whether there was a single conspiracy or more than one. The judge said that he had already given his ruling about that.
On the jury's return, the judge read out their question and directed them:
"The answer is the latter as a conspiracy is between two people. This indictment...
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