McCallan, R. v [2004] EWCA Crim 463

Case No 2003/4459/B1[2004] EWCA Crim 463
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Sitting at Leeds Crown Court
1 Oxford Row
Venue Leeds, LS1 3BGDate Friday, 20 February 2004
B E F O R E:
THE VICE PRESIDENT
LORD JUSTICE ROSE
MR JUSTICE ELIAS
MR JUSTICE HENRIQUES
Between
R E G I N ACrown-v-
Between
DAVID MCCALLAN
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR D CALLAN appeared for APPELLANTMR T MORAN appeared for CROWN
J U D G M E N T

LORD JUSTICE ROSE:

On

[1]20th June 2003, at Newcastle-upon-Tyne Crown Court, following a two day trial before His Honour Judge Lancaster, this appellant was convicted on count 1 of possessing a firearm with intent to cause fear of violence. He had previously pleaded guilty to count 2, possession of a prohibited firearm, and to count 3, possession of expanding ammunition. On 18th July he was sentenced to four years' imprisonment on count 1 and to lesser concurrent sentences on the other two counts. He appeals against his conviction by virtue of a certificate of the trial judge in these terms:
"The Crown informed the defence that the complainant had no convictions. After trial it emerged that he had one recent conviction. The conviction of the defendant may not be safe."
[2]The circumstances giving rise to this conviction were that, on 23rd February 2003, the police were called to the Top Club in Tyne and Wear, as a result of an allegation that the appellant had put a gun to the head of a man called Lee Fortunato in the club toilets. The appellant was arrested. He was searched, but elsewhere and thereafter it was found that he had disposed of a loaded, cocked gun in a field when the police gave him the opportunity of urinating.[3]It was the prosecution case that the appellant had pointed this handgun at the complainant and held it up against his head causing him to believe unlawful violence would be used.[4]The defence case was that the complainant had given the gun to the appellant because the complainant told the appellant that some men were looking for him.[5]We turn briefly to the evidence. Mr Fortunato said that he had gone to this club about 7.30 on the evening of 23rd February, having spent the afternoon in the Central Club. He went to the toilets a little after 9 pm and was at that stage the only person there. While he was at the sink the appellant, whom he knew, came in. The appellant wanted to know what he, Mr Fortunato, had been saying about the appellant earlier in the day in the Central Club and, to reinforce his repeated enquiries about that, the appellant put a gun to the right side of Mr Fortunato's head. He was sufficiently fearful to think death might be imminent. The appellant then, when someone else came into the toilet, put the gun away. At that stage Mr Fortunato walked straight out of the toilets and carried on with his game of snooker. It is clear that he had had some eight pints to drink, but he said he was not really drunk.[6]He was cross-examined when the defence case, which we have briefly summarised, was put to him and he denied knowing the two named men whom, it was being asserted on behalf of the defence, had used an axe on the defendant two nights before. That attack, according to what was put in cross-examination (but the allegation was not supported by any evidence from the appellant), was the reason why the defendant claimed that he had been given the gun by Mr Fortunato for his protection. Mr Fortunato not only did not know the two men who were identified by name to him, but he knew nothing, he said, of any such violent attack on the defendant a day or two before. In consequence, of course, if he was to be believed, he knew of no conceivable reason why he might provide a gun to the appellant to protect himself.[7]A statement was read from a Mr Wilson who had gone into the toilets to find two men there speaking to each other. They did not seem to Mr Wilson to be arguing, but were just talking normally. As he walked in, they walked out.[8]A statement from another witness, a Mr Rennison, was read to the jury. It was a statement which, for some reason, excited the jury's attention because they asked for it to be read again and it was. He said that he had gone to the Top Club at 7 o'clock on the evening of the 23rd and he had seen Mr Fortunato and the appellant. While he was playing snooker, Mr Fortunato approached him and took him to one side and, in the words of Mr Rennison, Fortunato "looked shaken and worried".[9]When he was interviewed the appellant accepted that he had been in the Top Club on the evening of the 23rd. He had been drinking throughout the day. He had previously been hit with a meat cleaver by two men but he had not wanted to press any charges. He was approached by the complainant in the toilets and the complainant handed him this gun, which was a starting pistol, as there were men apparently looking for him. According to what the appellant said in interview, the complainant told him to put the pistol in his pocket and to fire it in the air to scare the men off. So he put it in his pocket in order to protect himself. He had never threatened the complainant with it. As we have already indicated, the appellant did not choose to give evidence in support of the allegations which had been put in cross-examination.[10]The conviction of Mr Fortunato, which was not, as it should have been, disclosed to the defence prior to the trial, was a recent conviction for assault occasioning actual bodily harm. The complainant had pleaded guilty to that offence and a non-custodial penalty had been imposed.[11]It is convenient at that point to refer to the appellant's convictions which, of course, did not go before the jury because, although a vigorous cross-examination of Mr Fortunato had been conducted by counsel on his behalf, he had not himself gone into the witness box. In 1990 he had a conviction for wounding contrary to section 20 of the Offences Against the Person Act, a separate conviction for assault occasioning actual bodily harm contrary to section 47 of that Act and a conviction for criminal damage. All of those convictions, it is true to say, as Mr Callan on behalf of the appellant points out, were 'spent'. But it is inconceivable that, had the defendant chosen to go into the witness box, the judge would not have given leave for him to be cross-examined about them if the complainant had been cross-examined about his conviction. More recently, in 1997, he had a conviction for being drunk and disorderly and he had a further conviction in 1999 for disorderly behaviour.[12]The submission which is made by Mr Callan on behalf of the appellant is that, had the jury known of this conviction of Fortunato, their verdicts might have been different. He referred to a number of authorities including Eccleston, an unreported decision of the Court of Appeal (Criminal Division) on 10th July 2001, neutral citation [2001] EWCA Crim. 1626, where details of previous convictions of a prosecution witness for loitering as a prostitute and possession of a controlled drug and several convictions for theft had not been disclosed to the defence. It was submitted that, if they had been, they could have been used to support cross-examination of that witness as to her credibility. The court in the judgment given by Potter LJ concluded that those convictions were only of marginal relevance to the issue in the case and, even if the jury had known of them, they scarcely assisted in showing any animus by the witness against the appellant. The court did not regard the appellant's conviction as unsafe on that ground.[13]Mr Callan also referred to Vasilou [2000] Crim.L.R 845 in which a prosecution witness' convictions were not disclosed to the defence prior to trial. The court concluded in that case that, if they had been, "the strategy adopted at trial might have differed." And there was "just sufficient real prospect that matters would have proceeded differently to make the conviction unsafe."[14]In Underwood [2003] EWCA Crim. 1500, a decision of the Court of Appeal on 16th May 2003, the judgment of the court, on a Reference by the Criminal Cases Review Commission, was given by Longmore LJ. That was a case in which the commission had discovered that a prosecution witness had 54 previous convictions, 39 of them for dishonesty. It was likely that that witness had deliberately concealed his identity from the police and might, in the commission's view, have been motivated to fabricate important evidence against the appellant. The court concluded, in paragraph 30 of its judgment, that, in the particular circumstances of that case, the convictions of the witness could have made no difference to the verdict. Prior to reaching that conclusion Longmore LJ referred to certain authorities and, in particular, an unreported judgment of Lord Bingham of Cornhill, Chief Justice, in Farrell, 20th March 2000. Having cited from that judgment, Longmore LJ in paragraph 29 of the judgment said this:
"...it cannot be the case that if an important witness's convictions are not disclosed, the conviction must inevitably be quashed."
[15]Mr Callan stresses that Fortunato was a crucially important witness for the prosecution. The determination of guilt or otherwise was centrally dependent upon the account which he gave and its credibility in the eyes of the jury, bearing in mind the quite different account proffered by the defendant in interview with the police. Therefore, submits Mr Callan, not knowing by what thought processes the jury reached the verdict which they did, it might be that, had they known about Fortunato's conviction, their verdict would have been different.[16]For the Crown, Mr Moran points out that, although Fortunato was a highly important witness, there were three other matters which tended to support the account which he had given. First, the failure, to which we have already sufficiently referred, of the appellant to give evidence. The jury were in that regard directed that it was open to them, if there was other evidence establishing a prima facie case, to draw inferences adverse to the defendant. Secondly, there was the evidence of Mr Rennison in which the jury, for reasons already indicated, were particularly interested, which described the complainant's condition in terms which were clearly consistent with his account of frightening events in the toilet and inconsistent with the contentions put to him in cross-examination that he it was who had, quite calmly, proffered assistance to the defendant by way of armoury. Thirdly, Mr Moran points out that the fact that the starting pistol was found not only loaded but also cocked tended to support Mr Fortunato's account rather than that of the appellant.[17]Mr Callan accepted, in the course of his submissions, that it was highly unlikely that, if this conviction had been known to the defence, the course of the trial would have differed, save, of course, that the conviction would have been put to Mr Fortunato. In so far as Mr Callan contemplated the possibility, and it appears he did so very remotely, of the defendant being called, we regard that as unlikely in the extreme. The last thing that he would have wanted, as it seems to us, would be for his record, albeit not of particularly serious offences but nonetheless of a pattern of potentially violent conduct on his behalf, to go before the jury.[18]It is to be noted when assessing the potential impact of Mr Fortunato's unknown conviction, that self-defence was not in issue before the jury - that is to say, any propensity to violence on the complainant's behalf was not a matter which the jury had to consider. What they had to consider was the truthfulness of Mr Fortunato's account confirmed, as it seems to us it was capable of being confirmed, by the three matters to which Mr Moran on behalf of the Crown drew attention. Bearing in mind that not only was the conviction not one for dishonesty but arose as a result of Mr Fortunato's plea of guilty, it seems to us that there was nothing in that conviction which was capable of sustaining any sort of challenge to Mr Fortunato's credit. Further, the strategy for the defence could not materially have differed had they known of the conviction. It therefore seems to us, despite Mr Callan's valiant attempts, that it is quite impossible to say that the failure to disclose the conviction renders the verdict of the jury in this case unsafe. It follows that this appeal must be dismissed.

Cited in 1 later judgment