Anderson, R v [2008] EWCA Crim 837

No: 200701368 D3; 200701520 D3[2008] EWCA Crim 837
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 3rd April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
(Vice President of the Court of Appeal Criminal Division)
MR JUSTICE PENRY-DAVEY
MR JUSTICE FOSKETT
Between
R E G I N ACrownv
Between
JASON KENNETH ANDERSONEWART HENRY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Cameron QC appeared for Appellant AndersonMr N Corsellis appeared for Crown
J U D G M E N T

LORD JUSTICE LATHAM:

[1]On 16th February 2007 at the Crown Court at Harrow the appellant, Jason Anderson, was convicted of conspiracy to supply a controlled drug of Class A and was ultimately sentenced to 16 years' imprisonment. One of his co-defendants was Ewart Henry, who has renewed today his appeal against sentence, he having been sentenced to 12 years' imprisonment. We shall deal with that application at the conclusion of our judgment in relation to Anderson's appeal against conviction, which is brought with leave of the single judge.[2]The facts can, for the purposes of today, be shortly stated. The prosecution case was based to a large extent on the events of 24th August 2005. The appellant, together with a co-defendant Miller and others, had been subject to police surveillance. On 24th August the appellant was in the company of the co-accused Miller and Fisher and was seen to go to and from a flat in Prince's Park Manor, which was subsequently discovered to have been used undoubtedly by Miller and the appellant because their fingerprints were found on items in that flat. The movement which ultimately resulted in the arrest of the appellant and Miller was Miller and the appellant going from the flat with the appellant carrying a holdall, eventually to a car which was being driven by the applicant, Henry. The police were not able to see precisely what happened to the holdall, but after Henry had left (in circumstances to which we will return) Anderson and Miller were empty handed. The inference was therefore that the holdall had been delivered to Henry; and the prosecution case was that that was the transfer to Henry of a significant quantity of cocaine.[3]After that transaction the police moved in and arrested the appellant and Miller and searched the flat. The flat was found to contain in a bedroom two boxes which were filled with cocaine, a total of 42 kilograms in approximately single kilo lots. The value of that cocaine was £2 million on the street. The boxes were examined for fingerprints and, amongst others, the fingerprints of the appellant were found on the side and base of one of them.[4]The prosecution case was therefore simple. The appellant and Miller were dealers in very substantial quantities of cocaine, the amount found in the flat being their stock; and their meeting with Henry was for the purposes of the supply of a significant amount of that cocaine. Found in the flat, in addition to the cocaine, had been two lists which were said to have been written by Miller which contained names and quantities. Those were said to be the names of the people to whom the cocaine was to be supplied and the quantities were the quantities of cocaine to be supplied. Against the name "Hewitt" was the number "5". It was discovered that on Miller's phone against the name "Hewitt" was the telephone number of the applicant Henry. The prosecution therefore submitted to the jury that the delivery in the bag must have been a delivery of five units, in this case kilograms, of cocaine to Henry.[5]Returning to what happened as far as Henry was concerned, Henry was driving an Audi motorcar and, although the police sought to stop him from leaving the flat complex, they failed to do so and he drove off at speed. He was not arrested until some substantial time later.[6]That was the basic evidence in relation to the charge which was considered by the jury, but in order to support that charge the prosecution sought to put before the jury evidence relating to an incident which had occurred on 27th July, that is one month before the events which we have just described, when the appellant was stopped in his own motorcar and in the boot of the car was found a substantial quantity of a substance known as Mannitol. The Mannitol was packaged in five separate packages approximately five kilograms in weight each. The appellant stated to the police that he had bought this quantity of Mannitol for £200 intending to sell it, and that its purpose, as he described it at the time, was "weight gain". It is true to say that Mannitol has entirely legitimate purposes, and indeed can be described as a dietary substance, and is openly used in perfectly legitimate ways. It is, however, also used for the purposes of cutting cocaine, and the prosecution sought to put that evidence before the jury on the basis that it was no coincidence that the appellant had been found in possession of a substance which was capable of being used for cutting cocaine at the end of July and had been handling boxes -- a box in any event -- containing cocaine in August.[7]The matter was dealt with in two stages by the judge because at the time that the prosecution first made their application it appears as though the judge was not entirely clear whether the prosecution were asserting that the Mannitol had a direct connection with the consignment of cocaine which was found in the flat or not. In any event, he simply concluded that it was relevant and admissible.[8]The prosecution were put in some difficulty in relation to that ruling because they clearly had information that the Mannitol found in the car in July was not intended for use with the consignment that was found in the flat in August. They made an application to the judge in camera, which was indicated to be a PII application, in which it is to be inferred that the judge was informed of the basis upon which the prosecution had come to their view. The consequence was that the application for the admission of this evidence was reopened and reconsidered. On this occasion it was reconsidered by the judge on the basis that the provisions of section 98 of the Criminal Justice Act 2003 were in play because the evidence relating to the Mannitol could be described as being evidence relating to the appellant's bad character within the meaning of that section. He came to the conclusion that the evidence was relevant, that it was evidence caught by the bad character provisions of the Act and that the relevant paragraph of section 101 (1) of the Act was (d), which provides that the evidence is admissible if "it is relevant to an important matter in issue between the defendant and the prosecution". He concluded that it clearly did go to an important matter in issue between the defendant and the prosecution, which was the appellant's knowledge of the cocaine in the flat. The way he put the prosecution case was as follows:
"The Crown contend that this evidence is admissible to prove guilty knowledge, and/or to rebut a defence of innocent involvement, because common sense makes the combination of finding Anderson's fingerprint on a box containing the drugs, and the finding of this large amount of a cutting agent for cocaine in his possession, inexplicable on the basis of coincidence."
He then went on to consider under section 101(3) whether or not, despite the fact that it was evidence which was prima facie admissible, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. He concluded that no such unfairness would in fact arise and permitted the prosecution to put the evidence before the jury.[9]It is essentially on the basis that that ruling was wrong as a matter of law that this appeal is based; but there is the additional complaint that the judge did not deal with the matter properly in his summing-up.[10]Turning to the question of whether or not this evidence was admissible as the judge ruled, it is perhaps helpful to refer to the judgment of this court in R v Ilomuanya [2005] EWCA Crim 58, in which this court, in a judgment given by Auld LJ, reviewed authorities relating to evidence in such cases as this where the question arises as to whether or not evidence not directly relating to the particular transaction in drugs nonetheless may be admissible. At paragraph 23 the court said:
"These cases are simply examples of the basic principle derived from Makin v Attorney General for New South Wales [1894] AC 57 PC and DPP v Boardman [1975] AC 421 HL, that evidence tending to show that a defendant has committed criminal acts other than that charged may be admissible if it is relevant to an issue before the jury as to his guilty knowledge of the material fact, or facts, on which the charge he faces is based. More particularly, in the context of drug importation, they are examples as to the admissibility on their facts of evidence tending to show the defendant has otherwise been involved in drugs so as to undermine the defence of innocent involvement in the importation charged."
[11]The first question that therefore has to be asked in any situation such as this is the question of relevance: was the evidence relating to the Mannitol in this case relevant to any issue between the prosecution and the defence? The question, in our judgment, answers itself in terms of that paragraph in that judgment. The question here which was posed, because the appellant denied knowledge of the cocaine in the flat, was whether or not that denial could properly be accepted. The coincidence of the possession of Mannitol in July and the fingerprints on the box in August was clearly, it seems to us, a matter for the jury to determine in the context of both of those pieces of evidence being available to them. It was only in that context that the proper answer to the question in issue between the prosecution and the defence could be answered.[12]That being so, the next question is: did it amount to evidence of bad character under section 98 of the 2003 Act? The answer clearly is "yes". There was no evidence to suggest, and indeed the prosecution clearly disavowed such an argument, that the Mannitol was indeed connected with the cocaine which was found in August. It follows that the inference that the jury were being asked to draw was that he had the Mannitol for a nefarious drug-related purpose in July. It was therefore evidence relating to misconduct within the meaning of section 98. As far as the gateway through which it could go before the jury was concerned, it was quite clearly, in our judgment, relevant to an important matter in issue between the defendant and the prosecution within the meaning of section 101(1)(d).[13]It follows that the only question therefore which remains is whether or not, pursuant to section 101(3), or indeed section 78 of the Police and Criminal Evidence Act, the evidence should have been excluded because it would cause unfairness adverse to the appellant in the trial. The judge considered the matter properly. He concluded that there would be no unfairness. We can see no justification for concluding that that was a conclusion to which he was not entitled to come.[14]The sole remaining point therefore is whether or not, in dealing with the matter in the summing-up, in some way the judge went wrong or otherwise misdirected the jury.[15]The problem arises, it is said, because of the difficulty that the judge had in being able to avoid informing the jury by inference or otherwise of what he had heard in the PII application, which was to the effect that the Mannitol was not intended for the August consignment of cocaine but must have been for some other consignment of cocaine, and doing so in a way which simply was not open to him on the evidence before the jury. The judge said this in relation to that aspect of the case:
"I want to emphasise this, members of the jury, the Crown have accepted and admitted, based on the evidence available, and in particular, you may think, on the way the Mannitol was packaged, and I have gone through the detail of that, that the Mannitol was not, and I repeat, not intended for use in connection with the cocaine found on 24th August, but intended for sale at the time."
[16]As we have indicated, Mr Cameron, on behalf of the appellant, submits that that in essence was really telling the jury that the prosecution had evidence which was not before the jury which enabled them to make that assertion.[17]In our judgment, that takes the passage to which we have referred one step too far. The judge had indeed referred to the evidence relating to the way the Mannitol was packaged, but also the nature of it and the quantity of it as well, being the evidence upon which the prosecution was relying for the purposes of drawing their inference; and it was for the jury to determine whether or not that inference could indeed be properly drawn because when the defendant gave evidence, he made it plain that he accepted that he had got the Mannitol, he could hardly do otherwise, and he said that in his view it was for an innocent purpose. In his evidence he suggested to the jury that indeed it had been provided for him by Miller and that the fact that he was stopped in possession of it may well have been because he was set up by Miller for that purpose. Be that as it may, the jury had the material before them to decide accordingly whether they believed that the appellant considered that the Mannitol was indeed for an innocent purpose and they had to assess that in the light of all the other evidence in the case. We do not consider that the passage to which we have referred in any way misled the jury to an extent which could justify the conclusion that the verdict which the jury brought in ultimately was unsafe.[18]For those reasons, we dismiss the appellant's appeal against conviction.[19]Turning to the renewed application for leave to appeal against sentence by Henry, the single judge, in our view correctly, stated:
"Having conducted the trial the judge was particularly well positioned to assess relative criminality as between you and your co-accused. I can find nothing to suggest that the Court of Appeal would take a view more favourable to you."
[20]The only ground upon which Henry has sought leave to appeal is that his sentence was manifestly excessive in failing to reflect the difference in roles and the amount of drugs. It follows that the single's judge's comment is particularly relevant. We agree with it and conclude that there is no basis upon which this court would interfere with the sentence of 12 years' imprisonment imposed by the trial judge. Accordingly, we dismiss the application for leave to appeal.