Dunn & Anor, R. v [2005] EWCA Crim 1416

Case No 200403146 B3 & 2004033299 B3

[2005] EWCA Crim 1416

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 27 May 2005

Before

LORD JUSTICE MAURICE KAY

MR JUSTICE SILBER

THE RECORDER OF BIRMINGHAM

Between

Dunn & AnorDefendant

RCrown

REGINA-v-GAVIN DUNN and JAVIER BENITO GONZALES

Philip St. John-Stevens appeared on behalf of the Crown

Mark Gatley appeared on behalf of Gavin Dunn

Lawrence McNulty appeared on behalf of the defendant Gonzales

Judgment

[1]On 10 May 2004 in the Crown Court at Maidstone the appellants were convicted of an offence of conspiracy to supply a class A drug, namely cocaine. They each later received sentences of 9 years imprisonment. There were two co-accused. A man called Turner pleaded guilty to possession of cocaine with intent to supply for which he received a sentence of six years imprisonment. Yolanda Tabares was found not guilty of the conspiracy by direction of the judge at the conclusion of the case for the prosecution.

[2]The factual background to the case fell within a narrow campus. Dunn and Turner lived at separate addresses in Dartford not far away from the Dartford Hilton hotel. On 29 October 2003 police officers observed Dunn driving a Land Rover Discovery with Turner in the front passenger seat. At 1847 Dunn drove the Land Rover into the car park of the Hilton Hotel. Gonzalez walked from a parked Ford Mondeo and gave a carrier bag to Turner through the passenger window of the Land Rover. Gonzalez then returned to the Mondeo in which Yolanda Tabares was seated. The officers stopped both vehicles as they attempted to leave the car park and the occupants were arrested. A plastic bag fell out of the passenger side of the Land Rover. A cardboard box in the front foot well contained about 2 kilogrammes of cocaine. When interviewed, Gonzalez denied knowledge of the cocaine. That apart, all four suspects declined to answer questions. Both Dunn and Gonzalez gave evidence. Both denied knowledge of the cocaine. Dunn said that Turner had asked him to drive him to the hotel but he did not know what Turner was going to do there or that he was involved with cocaine. Gonzalez said that he was paid by a man called Harold to deliver money in a bag to Turner at the hotel.

[3]It can be seen from that brief summary that the structure of the trial closely resembled many trials concerning the supply of drugs, with the primary defence of each defendant being that he did not know that the transaction with which the undisputed evidence connected him involved drugs. However, what began as an uncomplicated case took a different turn when Dunn was being cross-examined by the prosecution. In his evidence in chief and when cross-examined on behalf of Gonzalez he had not incriminated Gonzalez. However, prior to the trial and for good reason Dunn’s legal advisers had made it known to the prosecution that, according to Dunn, Gonzalez had admitted to Dunn whilst they were both remanded in custody that he knew at the time that he was concerned in the supply of cocaine. Accordingly, counsel for the prosecution asked Dunn about this in cross-examination and thereby elicited evidence of an alleged confession by Gonzales. It is common ground that that evidence exposed Dunn to cross-examination on behalf of Gonzalez pursuant to section 1(3)(iii) of the Criminal Evidence Act 1898. The judge permitted counsel for Gonzalez to cross-examine Dunn about his previous convictions (about which no complaint is made) and also about matters with which he had been charged and was awaiting trial, namely the possession of firearms found in a caravan following Dunn’s arrest and a further conspiracy to supply cocaine which was the subject of ongoing proceedings in Bradford Crown Court. In addition, the judge permitted cross-examination about an allegation of money laundering the evidence of which related to 26 June 2003 but which had not and still has not led to any charge against Dunn. Dunn’s answers to these lines of cross-examination were essentially exculpatory. In due course counsel for Gonzales sought to call evidence which would have been inculpatory of Dunn in relation to those matters but the judge would not permit this. The result is that Dunn now complains about having been cross-examined in relation to unproven allegations, whilst Gonzalez complains about the refusal to allow evidence to be called to contradict Dunn’s exculpation. All this gave rise to two further matters of controversy. First, an application was made on behalf of Dunn to the effect that, such was the prejudice accruing to him as a result of the cross-examination about the unproven matters, the only fair course had become to sever the indictment at that stage and to permit him to be tried alone. The judge disagreed and the joint trial continued. Secondly, when Gonzalez gave evidence, the judge permitted counsel for Dunn to cross-examine him not only about his own alleged misconduct, but also about the involvement of Yolanda Tabares and her brothers Diego and John in international cocaine smuggling in the past.

[4]Against this background, both appellants now appeal against conviction by leave of the single judge. It is appropriate to deal with their grounds of appeal sequentially. 1. Dunn: The ambit of the permitted cross-examination Section 1 (3)(iii) protects a defendant in the witness box from “any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless – ……. he has given evidence against any other person charged in the same proceedings.” ……. he has given evidence against any other person charged in the same proceedings.” Once a defendant has thrown away his shield, it is well known that the judge has no discretion to refuse cross-examination on behalf of the co-defendant against who the defendant witness has given evidence.

[5]At trial it was common ground that, by his answers in cross examination on behalf of the Crown, Dunn had given evidence against Gonzalez and that counsel for Gonzalez should be permitted to re-open his cross examination of Dunn by asking him about his previous convictions. However, it was not accepted on behalf of Dunn that the re-opened cross examination should be permitted to extend to the pending matters of the firearms and the prosecution in Bradford or the evidence giving rise to the allegation of money laundering on 26 June 2003. In its terms section 1(3)(iii) extends beyond convictions and to charges and evidence of bad character. In his ruling the judge referred to Maxwell v. DPP

[1935] AC 309

and the requirement that any cross examination about unproven charges should meet the test of relevance. The judge was satisfied that evidence about the outstanding charges and the allegation of money laundering met the test of relevance, because in each case it was relevant to the credibility of Dunn, whose evidence about the confession on remand was strongly disputed by Gonzalez. Accordingly he permitted the cross-examination to range over the disputed areas, observing that he would return to the question whether any forthcoming evidence might be evidence of propensity at a later point in the trial when Dunn’s answers had become known.

[6]In our judgment the correctness of the ruling of the judge on the ambit of cross-examination of Dunn is beyond dispute. Ultimately, the question was one of relevance and the judge was right to identify relevance as he did.

[7]When counsel for Gonzalez embarked upon the re-opened cross examination, Dunn did not invoke his privilege against self incrimination. He answered the questions in a manner that denied criminality on his part. As to the firearms found in the caravan, he said that he would be maintaining a plea of not guilty, that the caravan was some sixty miles away from his home, and that the person responsible for the firearms (of which he knew nothing) was someone who rented the caravan from him and would be coming forward to admit that the firearms were his rather than Dunn’s. As to the prosecution in Bradford, Dunn said that he was “completely not guilty” and had “absolute evidence and witnesses and photographic evidence that it is nothing to with me. I was 270 miles away at the time of the transaction.” In relation to the questions about money laundering and an allegation that two men had left Dunn’s address carrying a bag containing over £200,000 in cash, he said that there was an innocent explanation and that, in any event, he was in Spain at the time on a stag week. Accordingly, notwithstanding the questions asked, there was no evidence adduced from Dunn to the effect that he was or might be guilty of any of the three matters. Indeed the only evidence was that he was wholly innocent.

[2]Dunn: severance

[8]The next question is whether, following the completion of Dunn’s evidence, the judge ought to have acceded to an application for severance on the basis that it was no longer possible for Dunn to receive a fair trial. The point sought to be made on his behalf was that, whilst no evidence of his complicity in the firearms, the Bradford prosecution or the money laundering had emerged, he had been so prejudiced by the questions in the presence of the jury that the only fair course was the exceptional one of severance at that stage.

[9]In his ruling the judge stated that he did not consider it to be an exceptional case. He added:

“There may be unusual features here but this simply does not come into the class of case where I should exercise my discretion to allow a separate trial, not least of which here the charge is one of conspiracy and there are very often in such charges cut throat defences and the single jury must hear all the evidence in relation to all the conspirators, whatever the particular difficulties may be for individual conspirators, and I have come to a decision accordingly. This is a clear case where your client must be tried along with Gonzalez”

. We cannot fault this exercise of judicial discretion. The overall interests of justice pointed overwhelmingly to the need to try Dunn and Gonzalez together.

[10]To complete the picture as far as Dunn is concerned, in due course the judge gave strong directions to the jury in his summing up. He said:

“The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant who has made this attack on his co-defendant may assist you to judge the truthfulness of his evidence when you come to consider the matter. You must not automatically assume either that the defendant is guilty or that he is not telling you the truth just because he has these previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence, nor are they evidence that the defendant committed the offence for which he stands trial now. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which if at all his previous convictions help you about that… As to the others matters, the bottom line on all that is that the defendant adamantly states that he is not guilty of some other conspiracy to supply drugs and you have not heard all the evidence nor the full extent of his defence to that matter. You may think that it would be a little unfair to raise an eyebrow and damn him. In any event, as I have already directed you, none of this in any way goes towards his guilt on the charges before you. It is only relevant, if it has any impact at all, upon his credibility.”

In our judgment, this was sufficient to protect Dunn in the circumstances of cut throat defences which had by then developed.

[3]Gonzalez: evidence of Dunn’s propensity

[11]As we have said, when counsel for Gonzalez cross-examined Dunn about the firearms, the Bradford prosecution and the allegation of money-laundering, the answers were exculpatory. As a result, counsel sought to adduce evidence on these issues which would be probative against Dunn and tend to show a propensity for drug dealing on his part. To the extent that the original cross-examination went to credit, it would not be open to Gonzalez to adduce contradictory evidence. However, there is clear authority for the proposition that, whilst it is not generally open to the prosecution to adduce evidence of propensity, there are circumstances, particularly when two defendants are running cut-throat defences, where one defendant may seek to prove the propensity of the other and, in so doing, strengthen the prosecution case against that other, provided that the evidence of propensity is relevant to the issue between the prosecution and the defendant seeking to adduce the evidence. R v. Randall

[2003] UKHL 69

[12]In the present case, the judge refused to permit counsel for Gonzalez to adduce evidence on the disputed matters. Counsel for Gonzalez had argued that the evidence was relevant to the issue of whether the box containing the cocaine was in the bag when it was passed through the window by Gonzalez to Turner. It was possible that the box was not in the bag but was already in the car and belonged to the man with the propensity to drug dealing. Moreover, this would give Dunn a motive to lie about the alleged remand confusion. However, the judge rejected all this as a live issue. He said:

“In my view it is highly speculative to say that the package, admittedly handed over by Gonzalez through the window of the Discovery…..was not the package found in the footwell of the Discovery. Gonzalez does not say that it was not the package of cocaine actually found. His defence…..is a matter of knowledge. In my judgment it is really, upon a proper analysis, a fantastic speculation to suppose that the package might already have been there. The evidence on which the evidence is said to arise is no more than theoretical and so flimsy that in reality….it is highly speculative and, accordingly, I am firmly of the view that there is no relevance in any propensity of Dunn to traffic in drugs to any issue which adversely affects Gonzalez. The matters upon which Dunn was cross-examined properly go to his credit only and his answers are final on that. Accordingly I disallow the calling of this proposed evidence as it would be inadmissible.”

[13]In our judgment, this careful finding was undoubtedly correct. It accords with Randall and the judgment of this Court in R v. B(C)

[2004] 2 Cr App R 34

, which was decided shortly after the trial in Maidstone and in which Rix LJ said (at para 45):

“Although, where it is a co-defendant who seeks to introduce the disputed evidence, the test is solely one of relevance and does not involve considerations of discretion or undue prejudice, we do not consider that it can be right that the merest arguability of relevance can be sufficient to require the evidence to be admitted. We say that because ultimately, as Lord Steyn observed in Randall, the question of relevance is a matter of degree and this can vary right across the spectrum.”

What this calls for, and what it received at trial in the present case, is a rigorous analysis of relevance. What must not be allowed to happen is for the label of relevance to be attached casually to something the real significance of which is peripheral or non-existent, as a result of which a jury finds itself distracted into assessing evidence in a satellite trial which should be none of its business. The present case affords a good example. If the judge had permitted the evidence to be adduced, the jury would have had to consider the extent of Dunn’s involvement in three other criminal matters. That would hardly have been conducive to the sensible resolution of the real issues in the case it was trying. Happily, the rigorous criterion of relevance came to the rescue.

[14]We are entirely satisfied that the judge was correct to exclude the evidence sought to be adduced on behalf of Gonzalez.

[4]Cross-examination of Gonzalez

[15]The final area of controversy relates to the cross-examination of Gonzalez on behalf of Dunn. Following the attack on Dunn’s character, Gonzalez was incontrovertibly exposed to cross-examination about his own bad character. Pre-emptively, he gave evidence in chief about his previous convictions for burglary. However, objection was taken to his being cross-examined about the bad character of his associates and his involvement with them. The disputed material was as follows. He was asked whether he himself had convictions in Spain for cocaine smuggling. He said he had not. He was asked about his involvement with Yolanda Tabares’ brothers in an importation from Venezuela to Tenerife in 1999. He said he knew one but not the other of the brothers but that he had had no involvement with that or any other importation and that he was serving a sentence of imprisonment for burglary in Lanzarote at the time. He totally denied that he had been to Colombia with one of the Tabares brothers to view the cocaine plantations or at all. He also denied all knowledge that Yolanda Tabaras and one of her brothers had been arrested at Heathrow in 1994 when entering this country wearing body belts which contained 10 kilos of cocaine (allegations in respect of which they were later acquitted).

[16]It is not suggested that when counsel for Dunn cross-examined Gonzalez about these matters he lacked the proper material to do so. The complaint is that the questioning ought to have been disallowed or, alternatively, permitted only in the absence of the jury in the first instance so as to ascertain whether the answers would have evidential value. The ruling of

the judge was expressed with brevity:

“It seems to me that [counsel] is entitled to pursue this matter. I do not think it would be right to pursue this in the absence of the jury. The jury should hear the evidence.”

[17]When matters unfolded, the answers were no more evidentially valuable than Dunn’s answers had been to the questions about the firearms, the Bradford case and the allegation of money laundering. The scenario was essentially the same – the shield having been lost, cross-examination related to Gonzalez’s previous convictions, charges or bad character in accordance with section 1(f)(iii) of the 1898 Act. The arrests of the Tabares at Heathrow in 1994 were perhaps marginal but could be said to go to Gonzalez’s own bad character if he had affirmed knowledge of his passenger’s past involvement with cocaine smuggling, even though she had been acquitted (as, by this stage, she had also been in the present case). Be that as it may, all Gonzalez’s answers were exculpatory and

the judge eventually directed the jury in these terms:

“Mistakes with regard to a person’s previous convictions are sometimes made and sometimes serious mistakes, but in any event, for the reasons I have already given and sought to emphasise….., you must put questions – and a number of questions were like that in that category - completely out of your mind. Try the case on the actual evidence and not on suggestions which are not backed up by proper evidence.”

[18]It is submitted on behalf of Gonzalez that neither that nor any other direction could have undone the prejudice engendered by the questions asked in cross-examination. We disagree. We do not underestimate the difficulties which arose in this trial from the moment that Dunn gave evidence about the remand confession. Those difficulties were of the kind which often arises when defences become cut throat. They may have taken an accentuated form here and that may be particularly unfortunate when the underlying defence of each defendant was not inconsistent with that of the other. However, the judge dealt with the difficulties appropriately and with aplomb.

[5]Gonzalez: disclosure

[19]We have dealt with the grounds of appeal upon which the two appellants were granted leave. There is a further ground upon which Gonzalez was refused leave and which has been referred to before us. We can deal with it summarily. Gonzalez complains that, whilst the prosecution complied with its duties of disclosure under the Criminal Procedure and Investigations Act 1996 and by reference to R v H and C

[2004] 2 WLR 335

HL, the requirements of the Act and the House of Lords are not wholly compliant with

Article 6 of the ECHR

, mainly because they countenance the withholding of material that is neutral or adverse to the case of the defendant. We do not accept that the relevant passage in H and C is obiter. We consider ourselves to be bound by it. We refuse this renewed application for leave. It is a matter for Gonzalez whether he wishes to take the point to Strasbourg, as is suggested. We simply record that, in our judgment, the 1996 Act and H and C are not in conflict with Edwards v. United Kingdom (1992) 15 EHHR 417, which was concerned with procedure rather than with the substantive test for disclosure. However, we did not hear full argument on the issue and we say no more about it.

Conclusion

[20]We are unpersuaded by the grounds of appeal which were ably advanced on behalf of both appellants. Neither conviction is unsafe. Both appeals are dismissed. Readers of this judgment may be interested to know that, following his conviction by the jury, Dunn changed his plea to one of guilty in relation to the firearms charge. He was subsequently acquitted in the Bradford case when the prosecution offered no evidence, following a problem with disclosure and public interest immunity. Neither of these later events impacts upon the safety of the conviction of Dunn or of Gonzalez.