Ramirez, R. v [2009] EWCA Crim 1721

[2009] EWCA Crim 1721

Case No 200801047 C5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 24th July 2009

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MR JUSTICE IRWIN

HIS HONOUR JUDGE BAKER QC

(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

Between

R E G I N ACrown

Between

JAMIE HUBERTA RAMIREZ

Computer Aided Transcript of the Stenograph Notes of

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Ms EA Marsh QC and Mr SA Ivill appeared for Appellant

Ms Ester Schutzer-Weissman appeared for Crown

J U D G M E N T

LORD JUSTICE RICHARDS:

On

[1]16th January 2007, in the Central Criminal Court, after a trial before HHJ Forrester and a jury, the appellant was convicted by a majority of 11 to 1 of the murder of Kennie Lee Williams. There were two co-accused. Hernan Ramirez, the appellant's brother, was convicted of murder by a unanimous verdict. Paul Day was acquitted. An appeal against conviction is now brought by the appellant with leave of the full court. The sole ground on which leave was granted relates to the consequences of the co-accused Day giving, without prior notice, evidence of the appellant's bad character.

[2]The outline of the matter is as follows. The appellant (known as Grime) and his brother Hernan (known as Sparks) were alleged to be substantial drug dealers in the areas of Crawley and Redhill. Day acted as a runner for them. The deceased, Williams, also worked for them as a salesman and runner, assisting Day in particular in selling class A drugs to addicts. However, Williams had incurred the displeasure of the others by poaching customers.

[3]On 20th February 2007, at about 11.00pm, the appellant, his brother Hernan and Day went to the home of Williams and Williams' girlfriend, Katrina Sinnick. They took with them a bottle of brandy. After the bottle had been consumed, Williams was attacked with it. It was a heavy bottle and he received at least 14 blows of severe force to the back of the head. The Crown alleged that Hernan started the attack and the appellant continued it. Williams was defenceless after the first blow. Ms Sinnick witnessed the attack while her child was asleep in the next room. The appellant and Hernan Ramirez threatened to harm her and her family if she informed on them, and advised her to say that three black strangers wearing balaclavas carried out the attack. They left, taking the bottle and glasses with them and without summoning medical assistance.

[4]Ms Sinnick initially told the police that the attack was carried out by three men in balaclavas but in the afternoon of 21st February, while in a car with a police officer, she started to cry, said she knew who did it and named Day, Sparks and Grime. The appellant was arrested on 25th February but declined to answer questions in interview.

[5]The prosecution case at trial was that the appellant, together with his brother Hernan, struck the blows intending to cause at least really serious injury. Day gave evidence admitting presence but accusing the Ramirez brothers of the murder. Hernan gave evidence, also admitting presence but blaming Day for the attack and denying that the appellant was there. The appellant himself did not give evidence. Thus there was a conflict between Day and the Ramirez brothers, with each side accusing the other; and as part of their defence each side attacked the character of the other.

[6]In particular, Day's evidence included, without notice or compliance with the relevant procedural requirements, an attack on the character of the appellant. The judge subsequently held on an retrospective oral application that he would have admitted the evidence if an application had been made before the evidence was given. The appellant's contention is that the judge was wrong so to rule and to allow the trial to continue. It is said that the evidence given without notice at such a late stage caused irremediable prejudice to the appellant and rendered his trial unfair and his conviction unsafe.

[7]We turn to consider the trial in greater detail. The principal prosecution witness was Katrina Sinnick. Her testimony included evidence that the Ramirez brothers had reputations as substantial suppliers of crack cocaine and heroin. She had only met the appellant, Grime, once but knew his brother Hernan (Sparks) better. She knew that Williams was involved in the drug dealing business, that he and Day worked together as runners for the appellant and Sparks, and that he had been poaching customers or dealing on his own in the days leading up to 20th February.

[8]On that day the appellant came to her home with Sparks and Day to have a drink with Williams. The five of them sat down in the living room drinking brandy in glasses, three of which had a distinctive egg motif, until the bottle was empty. The appellant watched whilst Sparks stood up, said to Williams "Do you think I'm a fucking mug?" or words to that effect and hit Williams with the empty bottle with great force. The appellant then stood up, took the bottle from Sparks and struck Williams with the same or greater force. Sparks told Ms Sinnick to leave the room. She left, leaving the appellant and Sparks in the room with Williams. She saw Day in the passageway staring into the room. She asked him what was going on and he replied that it was nothing to do with her, Williams had been “mugging them off”; he repeated later that Williams had been taking their customers. She said she heard more than ten noises, like the sound of the bottle hitting Williams' head, coming from the room.

[9]Sparks them came out of the kitchen and asked for a bin liner which he gave to Day. Day held it open while the appellant put in it the glasses and the bottle, which was covered in congealed blood. The appellant told Ms Sinnick to calm down as she was not going to get hurt. He said:

"Call an ambulance. You haven't seen us. You don't know who we are. Say three men in balaclavas burst in"

. Sparks threatened to come back for her and her family if Williams was there the next day. She called an ambulance and gave the balaclava story until the following day when she told the police the three identities of the three men. She subsequently picked out all three defendants at identification procedures. She also said that the appellant had been wearing a distinctive jacket and there was evidence from police officers that this jacket was found in the washing machine at Sparks' address.

[10]There was evidence from other prosecution witnesses that the appellant was involved in a drug dealing business with his brother Sparks and that Williams was involved in that business and had been poaching customers or dealing on his own. One of the witness, Sultan Gani, testified that Williams told him he had started working for another dealer. Gani had warned him that this could end with his being hit or killed and Williams told him that he was scared of Day, Sparks and the appellant. Williams repeated this fear to him over the telephone on 20th February. Williams sounded worried and scared and said he was waiting to have drinks with Day, Sparks and the appellant.

[11]There was also prosecution evidence that men matching the description of the appellant and his brother had been in the area of Williams' home in the days running up to 20th February, supporting a prosecution allegation that they had carried out reconnaissance and that the offence was premeditated.

[12]In the course of the trial, evidence of the appellant's bad character was put before the jury in an agreed form. It included:(a) a conviction for possession of heroin and crack cocaine in 2003;

(b) a conviction for possession of heroin, cocaine and cannabis in 2003;

(d) his having been found by police with Day in 2004 in a car in which an extendable baton was found;

(e) a conviction for using threatening words or behaviour in 1996; and

(f) a conviction for using threatening words or behaviour in 2007. The previous drug related convictions, (a) to (c), were agreed as the subject of admissions at an early stage of the trial. The other matters, (d) to (f), were admitted at a later stage, partly following an application by Day and partly in the light of information that Day was going to be giving in the course of his evidence an explanation about the discovery of a baton in the car in 2004.

[13]We have not covered all aspects of the prosecution evidence but have concentrated on the central features of it. We should note that there was no forensic evidence linking the appellant with presence at the scene or with the murder weapon. Police found the bottle at an address associated with the three defendants and their drug dealing business but the bottle had been washed and the blood removed. With the bottle was found a clean glass with an egg motif matching the glasses described by Ms Sinnick in her evidence.

[14]Following the close of the prosecution case, Day, as the first named defendant on the indictment, was the first to give evidence. In his evidence in chief, he gave evidence in accordance with his police interview. He said he had been present at Ms Sinnick's home when the appellant and Sparks made the attack but he did not know it would happen and he took no part in it. He gave an account of working for the appellant and Sparks in a drug dealing business. He explained that Williams worked for them also but there had been a recent problem with him taking customers. In relation to 20th February, he stated that Sparks had told them that there was an arrangement for him, the appellant, Day, Williams and Ms Sinnick to have a drink together. That evening, the three defendants drove together to where Williams was staying. They took a brandy bottle with them. Day's account of what happened at that address was in broadly similar terms to that given by Ms Sinnick. He explained his failure to intervene in the attack, and his decision to leave Williams injured, on the basis that he was scared that the other two would turn on him.

[15]Day gave additional evidence concerning his own bad character. That was admitted following argument. It included the fact that he had been stopped by the police, together with the appellant, in a car in 2004 and that a baton had been found in the car. He said that the car had been used for selling drugs. He also gave further particulars of the basis for his fear of the appellant and Sparks. Those matters are conveniently summarised, so far as they are material, in the skeleton argument on behalf of the appellant as follows:(i) the appellant was banned from driving the day before the attack on Williams;

(ii) the appellant had asked Day to steal cars, "whatever I could get my hands on";

(iii) the appellant had punched Day in the face and sat on his head, and "whacked my brother who was there as well, for no reason";

(iv) a person called "Wish" "got slapped because he was smoking their gear ... he got beaten up for something";

(v) a man called Gary Aitkens was beaten up by the appellant, who punched him in the face a few times for "smoking [their] crack and doing dodgy things behind his back";

(vi) the appellant had punched Day in the face a few times for taking a woman called Gracie round to Day's friend's house when drugs were being cut up;

(vii) the appellant had punched Day in the face and "slapped me up" for sleeping with one of his customers, a girl called Leckie;

(viii) the appellant had told Day that he would stab him and then he had actually stabbed Day with a knife in the back around Christmas 2006, in relation to which Day showed the jury a scar which he claimed was the result of that stabbing;

(ix) a woman called Sky James had told Day that the appellant kept a shotgun in her loft and "beat the shit out of her" because she tried to sell the gun;

(x) Day alleged that the appellant and his brother had "had so many people working for them ... and they have all been beaten up"; and

(xi) Day alleged that he and the appellant had attended the police station on police bail in relation to a previous allegation relating to a stolen vehicle and travelled there in another stolen vehicle.

[16]All of that evidence detailed in (i) to (xi) was introduced for the first time during the evidence in chief of Day. None of it had been the subject of a notice or application under the provisions to which we will come, and no warning as to this part of Day's evidence had been given to the appellant or his legal team in advance of the evidence itself.

[17]During a break in the course of the evidence in chief, counsel for the appellant, namely Ms Marsh QC (who represented the appellant below as she has before us), raised the failure to provide advance notice of the allegations of bad character and the consequent inability of the judge to rule in advance on the admissibility of that evidence. The matter was raised, as it seems to us, not at the first opportunity that existed to raise it, and by the time it was raised most of the defendant's bad character evidence concerning the appellant had come out. The judge ruled at the time that the evidence should continue because Day had gone so far in it and was about to turn to the events of 19th February which were very much part of the facts of the case. In effect he ruled that any application in respect of what had occurred should follow once Day had completed his evidence. That ruling is not of itself the subject of challenge and we are not called upon to decide whether this was the right way to handle the matter or whether there might have been a better alternative.

[18]Day then completed his evidence in chief. This was followed by cross-examination by all parties. In the course of cross-examination on behalf of Hernan Ramirez, he accepted that he had not told the police in his interview about the violence by Hernan or the appellant and that he had lied to the police in not explaining to them anything about the drugs background to his relationship to the people involved in the incident. Cross-examined on behalf of the appellant, he was challenged about the evidence of violence by the appellant that he had given in his evidence in chief. In particular, he was challenged about the scar on his back on the basis that he had given an account previously that a girl was responsible; it was said that before now he had never told anyone except Emma Cook that the appellant had stabbed him, and that he told Emma Cook this information after she had given evidence in the case. He agreed in the course of questioning that the girl called Leckie was Alexis Beckett, whose statement had been read to the court. He agreed that the first mention of the allegations against the appellant was when he gave evidence. He gave details of the address of Sky James and said her telephone number would be on the mobile phone taken from him on arrest.

[19]Those matters were, as we say, covered in cross-examination of him on behalf of the appellant. Cross-examined by the Crown, Day repeated his allegations of violence on the part of the appellant and stated that he was more scared of the appellant than of Sparks.

[20]What happened in relation to the giving of Day's evidence of bad character concerning the appellant may be contrasted with what happened in relation to his evidence of the bad character of the other defendant, Hernan Ramirez. That was the subject of an application on Day's behalf before the evidence was given. The application was opposed by counsel for Hernan but the judge ruled that the evidence could be adduced.

[21]After Day's evidence, including cross-examination, had been completed, full argument was heard on the status and consequences of the evidence that Day had given about the appellant's bad character. The judge ruled first that the evidence did not fall within section 98 of the Criminal Justice Act 2003, as had been submitted by counsel on the appellant's behalf. He held that the matter would have to be dealt with under section 101 of the Criminal Justice Act 2003 and that an application for it to be admitted under that section should have been made. He said that the evidence was new. Whilst evidence had previously been given about Hernan Ramirez's bad character and propensity for violence, Day was now making allegations not only against Hernan but for the first time also as against the appellant.

[22]The judge considered how to deal with the problem that had arisen. He said that he should put himself in the position he would have been in had he heard an application under section 101 of the 2003 Act prior to Day giving evidence, and he should ask himself what his decision would have been if an application had been made at that stage. As to that, he had no doubt that he would have ruled the evidence admissible because it was relevant to Day's state of mind and the appellant's propensity to violence, which were important matters in issue as between Day and the appellant, in that each blamed the other for the murder, and it had substantial probative value in respect of who was telling the truth. He continued as follows:

"And so what to do about that now? Well it has been admitted in the sense that the evidence has been given and I would have admitted it, so I now have to consider the position of the third defendant [the appellant] to ensure as best I can that he receives a fair trial. How can he deal with it? Well he can deal with it by giving evidence, he can deal with it by calling evidence, he can deal with it by any admissions if opposing counsel are prepared to make them, and it may be that they are not, but I am just canvassing possible routes. And so I do not think it is appropriate to discharge this jury, either in the case or in respect of the third defendant, I think the case can perfectly properly now continue, because after all the third defendant's case has not yet opened and there are avenues by which he can seek to put his own side of the story before the jury. And that is what he must do. In whatever way he chooses, but if he needs time for further inquiries why then it seems to me that reasonable further time should be given."

The trial then proceeded. At the conclusion of the case, the judge dealt with Day's evidence in the summing-up in a manner about which no complaint is made.

[23]There is no dispute about the relevant legal framework. We do not need to set out the provisions of sections 98 and following of the 2003 Act governing the admissibility of evidence of bad character. Under section 101(1)(e) evidence of a defendant's bad character is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and the co-defendant. This gateway has obvious relevance to cutthroat defences such as that which Day was running against both his co-defendants at the trial.

[24]Section 111 provides for the making of rules of the court as to, among other matters, the giving of notice where a party proposes to adduce evidence of a defendant's bad character. Under rule 35.5 of the Criminal Procedure Rules, a co-defendant who wants to introduce evidence of a defendant's bad character or to cross-examine a witness with a view to eliciting such evidence must give notice in a specified form to the court officer and all other parties to the proceedings not more than 14 days after the prosecution has complied or purported to comply with its initial disclosure obligation under section 3 of the Criminal Proceedings and Investigations Act 1996. Under rule 35.8, the court may allow notice or application required under the rules to be given in different form or shorten the time limit under the rule or extend it even after it has expired.

[25]In R v Musone

[2007] 2 Cr.App.R 29

at page 379, the court held that once evidence of a defendant's bad character meets the test in section 101(1)(e) there is no power under the 2003 Act or section 78 of the Police and Criminal Evidence Act 1984 to exclude that evidence on the grounds of unfairness. However, the rules made under section 111 confer an implied power to exclude such evidence in circumstances where there has been a breach of a prescribed requirement, and a judge is entitled to exercise that power where he concludes that a defendant has deliberately manipulated the trial process so as to give his co-defendant no opportunity of dealing properly with the allegation made. It was on that basis that the court in Musone upheld the trial judge's refusal to allow evidence to be given of a co-defendant's alleged confession or to cross-examine the co-defendant about it after the judge had concluded that the failure to give notice of the evidence or of the intention to cross-examination about it was due not to an oversight but to a deliberate intention to ambush the co-defendant.

[26]Similarly, in R v Jarvis [2008] Crim LR 632, the court held that rule 35.8 gives a judge a wide discretion whether to allow or refuse a late application to adduce bad character evidence and, if an application is made so late that the target of the application would unfairly be unable to deal with it, the judge has ample power under the rules to refuse to admit it.

[27]The present case of course concerns not just late notice but a failure to give any notice at all prior to the evidence being given: no application was made before the evidence was given and it was impossible for the judge to give a ruling in advance on whether the evidence could be admitted or not. But in dealing with the situation that arose as a result of the evidence being given in that way, the judge made clear, as we have said, that he would have ruled the evidence admissible had a late application been made before Day gave evidence.

[28]The essential issues on the appeal are whether the judge was right so to rule and to allow the case to proceed as he did after Day's evidence of the appellant's bad character had been given.

[29]On the appellant's behalf, it is submitted by Ms Marsh that the failure to give notice of Day's bad character evidence concerning the appellant caused prejudice to the appellant in a number of ways. First, none of the points raised with reference to the appellant, as we have set out, was put to the prosecution witnesses, including, most importantly, the deceased's girlfriend Ms Sinnick but also including other witnesses such as Emma Cook. The appellant was therefore unable to challenge the assertions by cross-examination of the relevant prosecution witnesses.

[30]Ms Marsh has stressed to us in the course of her oral submissions that matters of character had been ventilated on several occasions in court at the earlier stages of the trial. Because, on the basis of what had happened on those occasions, it appeared that there was only a limited attack on the character of the appellant, limited essentially to his drug dealing activities, the appellant had been able to take a back seat as regards cross-examination during the course of the prosecution evidence. Ms Marsh said that the appellant and his team were lulled into a false sense of security. They had proceeded in the expectation that the appellant would not be called as a witness. A defence statement had therefore not been served. The view was taken that it would be possible to address the jury in terms of the non-violent nature of the appellant. All that, it is said, was destroyed by the way in which Day's additional evidence of the appellant's bad character came out.

[31]Secondly, a number of potential witnesses were named in Day's assertions but it was not possible for the appellant's team to trace and interview those witnesses in the time available. Thus Leckie, Alexis Beckett, had been listed as a prosecution witness and, it is said, could have dealt with the material naming her, but she had in fact been de-warned by counsel for Day so had not given evidence and in the event the appellant's team were unable to obtain contact details for her and were simply told by the prosecution that when Alexis Beckett had been approached by a police officer she had declined to give evidence. The result was that the appellant's team were powerless to interview her. In cross-examination of Day, on the appellant's behalf, it was put to him that Alexis Beckett had done the stabbing of Day which Day attributed in evidence to the appellant. The absence of an opportunity to interview her was therefore a matter of real materiality. As to Sky James, she was unknown to the police and the appellant's team were unable to trace her. Emma Cook had been called as a prosecution witness and gave evidence but no questions were put to her by counsel for Day as to the alleged stabbing of Day by the appellant, of which Day asserted she was aware. Other witnesses, namely friends or relatives of Day, were named during his evidence but by this point the appellant's team could not realistically obtain details of them or conduct proper inquiries.

[32]Thirdly, and more specifically, the allegation of stabbing and the injury allegedly caused by it, to which the appellant understandably attaches particular weight, were, it was said, revealed for the first time in Day's evidence, affording the appellant's team no proper opportunity to have the background investigated, including any witnesses to the incident and any alternative accounts of it.

[33]Thus it is submitted that the manner and lateness of the admission of this evidence caused insurmountable difficulties for the appellant of such magnitude as to cause injustice to him and to render the continuation of the trial unfair and his resulting conviction unsafe. The damage simply could not be repaired, says Ms Marsh. She submits that the judge should have discharged the jury and aborted the trial.

[34]We have received submissions on behalf of the prosecution in the form of an excellent written skeleton argument by Ms Schutzer-Weissman but we have not found it necessary to call on her for oral submissions. In her written skeleton argument, she submits, first, that the appeal put forward is technical and has little merit, especially as the judge allowed time for further inquiries to be made on the appellant's behalf prior to his defence case being opened. Secondly, the evidence given by Day, while prejudicial, was given at a time when the appellant and those representing him were able properly to deal with it and challenge it by cross-examining Day itself, by the appellant giving evidence, by calling or recalling prosecution witnesses and by seeking out and obtaining further evidence. In any event, in relation to the specific points raised by the Ms Marsh and to which we have already referred, it is said that the position of Alexis Beckett was covered by an admission that she was unwilling to assist, which did not damage the case for the appellant, particularly bearing in mind that it was his case that she was the one who had stabbed Day. Attempts were indeed made to establish who Sky James was and how she could be found. They were unsuccessful. There is, however, no suggestion that the intervening period between conviction and the present appeal has given rise to success in this regard or that the appellant would have been in a better position with longer notice of the allegation made. Emma Cook was known to all, having been tendered by the Crown, and she could have been recalled or called by the appellant. No such application was made and the fact that Day had not asked her to confirm allegations later made against the appellant reflected badly on Day's evidence, thereby assisting the case for the appellant. The other friends and relatives were known to the appellant when Day gave his evidence and some time could have been sought from the court to pursue inquiries as suggested by the judge. Here again there is no suggestion that inquiries have been subsequently made with any success or that the appellant would have been in any different position had more notice been given.

[35]Further, it is submitted that Day was cross-examined extensively as to the scar on his back by counsel for the appellant, who appeared to have in her possession opposing accounts of how the injury had occurred. Furthermore, in the witness box Day was asked and agreed to sign a consent form for the release of his medical records, but, again, no material had been put forward to suggest that this provides anything of assistance to the appellant or such as would therefore have assisted him more had more notice been given.

[36]A further strand in the submissions made on behalf of the prosecution is that the decision retrospectively made to admit the evidence, or that the evidence would have been held admissible if an application had been made before it was given, was a decision properly taken and that the judge gave proper consideration to the impact on the appellant's ability to have a fair trial of the evidence being given without notice at the time when it was. It is submitted that the judge exercised his discretion properly and that there are no grounds for interfering with his decision. It cannot be inferred that the giving of the evidence without notice was a deliberate manipulation of the rules on the part of Day or his legal team. His counsel argued that no application had been considered necessary, on the basis that the evidence fell within section 98 of the 2003 Act, albeit that that submission was then rejected by the judge. The judge was entitled to conclude that the situation was not one in which the appellant was unfairly unable to deal with the evidence. The retrospective admittance of the evidence therefore did not cause irremediable prejudice and the judge was right to deal with it as he did.

[37]There is a final submission for the prosecution that, even if the judge was wrong to admit Day's evidence of the appellant's bad character, this would not render the conviction unsafe since the other evidence against the appellant was so strong that the only reasonable and proper verdict for the jury would nevertheless have been one of guilty.

[38]In our judgment, the judge dealt correctly with the difficult situation that arose in this case from the failure of Day to give the requisite notice of his evidence of the appellant's bad character. The judge was clearly right that notice should have been given and an application made for the evidence to be admitted under section 101(1)(e). The cases of Musone and Jarvis show that, where there has been a failure to comply with the notice provisions under the rules, the judge has a discretion to refuse the application if there has been a deliberate manipulation of the rules giving rise to unfairness (see Musone) or simply where lateness of the application could give rise to unfairness through the target of the application being unable to deal with the evidence (see Jarvis). Although, so far as we can see from the transcript, the judge's attention was not drawn to those authorities, he approached the matter in a way which met the substance of the principles laid down in them. The judge was right to conclude that the evidence would be admissible under section 101(1)(e). The contrary is not in reality contended for by counsel for the appellant. The judge was right to go on to consider whether the appellant would have a fair trial following the admission of that evidence. He found that the appellant could, in that there were various avenues by which he could seek to put his side of the story before the jury. He also made clear that, if the appellant needed time for further inquiries, then reasonable further time would be given.

[39]We acknowledge that some disadvantage may have been caused to the appellant through inability to trace and interview at such a late stage some of those to whom Day referred as part of his evidence on the appellant's bad character. But there is only limited force in that consideration. We accept the various points made by prosecution counsel, as already summarised. in relation to the named witnesses (Alexis Beckett, Sky James, Emma Cook) and the various other witnesses about whom it is said that the defence would have wished to make inquiries. It is not contended that the judge allowed an unreasonably short time for further inquiries. Moreover, there is even now nothing to suggest that due notice of Day's evidence would have put the appellant in a position to challenge it any more effectively than he could in the circumstances that arose at the trial.

[40]An obvious way in which such evidence could have been challenged at the time was by the appellant himself giving evidence about it, but he chose not to go into the witness box. One can understand why, if he had previously decided not to give evidence, the additional matters raised by Day may not have been sufficient to cause him to do so, but in this respect he was in truth in no different a position than if full notice of that evidence had been given.

[41]In our view, therefore, the judge was entitled to conclude that the giving of Day's evidence without proper notice did not prevent the appellant having a fair trial. Although the judge did not put it this way, his conclusion on that issue plainly meant that he would not have exercised his discretion, the discretion vouchsafed by Musone and Jarvis, to exclude the evidence on a late application on the grounds of unfairness to the appellant.

[42]It is true that because Musone was not cited the judge did not consider the matter in terms of whether there had been a deliberate manipulation of the rules by Day. We cannot have the same feel for the matter as the judge would have had. We have borne in mind what Ms Marsh has told us about the development of the character issues in the course of the trial and the state of mind of the appellant's defence team, though we have to say that we are surprised, if this was regarded as such a critical issue when it arose, that there was not an earlier intervention which might have led to the matter being resolved before all the relevant evidence was given. We understand why it is said that what occurred amounted to an ambush. On the other hand, there was an argument, albeit rightly rejected by the judge, that the evidence fell under section 98 and did not go through section 101 gateways at all. In relation to Hernan Ramirez, an application had been made and allowed. An application in relation to the appellant was plainly going to be successful if made in good time and there was no obvious reason why the element of surprise should make Day's evidence substantially more effective. Moreover, it is not impossible that Day's oral evidence simply went further than his legal team may have expected from what was contained in his proof of evidence, but not necessarily because of a deliberate intention to cause the appellant prejudice by taking him by surprise.

[43]In any event, if the judge was right, as we think he was, to conclude that the giving of the evidence, even without proper notice, would not prevent the appellant having a fair trial, the motivation of Day or indeed his legal team in failing to give proper notice of it - even if there was a deliberate intention to ambush - would not in our view provide a sufficient reason in this case for the judge refusing the application to admit the evidence. It follows that the judge was right in the ruling he made as to the admission of the evidence. It also follows that he was right not to discharge the jury. For these reasons, we do not accept that there was a material error in his handling of the issue or in his decision to allow the trial to proceed.

[44]We should stress that that conclusion is reached on the particular facts of the present case. It is right to say, however, that we remain very concerned at the potential implications in other cases of what happened here. We make clear that in another case the giving of bad character evidence by one defendant in relation to a co-defendant without prior notice or application could well lead to the discharge of the jury and to a retrial, with the possibility of severe sanctions in the form at least of wasted costs orders against any legal representative found to have been involved in the deliberate manipulation of the rules leading to such a consequence.

[45]Returning to the present case, however, we are not persuaded by Ms Marsh’s submissions. In our judgment, the conviction is safe and the appeal must be dismissed.

Cited in 1 later judgment

Mitchell, R. v 2010