O' Connor, R. v [2010] EWCA Crim 2287

[2010] EWCA Crim 2287

Case No 200801633/B3-200901502/B3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 22nd June 2010

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOOPER

MR JUSTICE GROSS

HIS HONOUR JUDGE MOSS QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

DAMIEN O'CONNOR

Computer Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

Mr S Csoka appeared for Appellant

Mr B Cummings QC appeared for Crown

J U D G M E N T

LORD JUSTICE HOOPER:

[1]We dismiss this renewed application for leave to appeal sentence. We now give our reasons for that conclusion and our conclusion, already announced, that we dismiss the renewed application for have to appeal conviction.

[2]On 11th February 2008 in the Crown Court at Liverpool before His Honour Judge Roberts and a jury the appellant was convicted of conspiracy to supply Class A controlled drugs. He was subsequently sentenced to 20 years' imprisonment, less three days spent on remand and given a travel restriction order for 10 years upon his release from custody.

[3]There were a number of co-accused, in particular we should mention Stephen Marshall, who pleaded guilty to the same count and was sentenced to 13 years' imprisonment and Craw who likewise pleaded guilty to the same count and was given a similar sentence.

[4]There were a number of other defendants including one we should mention, Majeed Shah, who was sentenced to 12 years' imprisonment for the same offence.

[5]The applicant renews his application for leave to appeal against conviction and sentence after refusal by the single judge, Sir Charles Gray. No one else is now appealing their sentences. In so far as the other co-defendants are concerned, they all pleaded guilty and the jury heard about those pleas. There was no dispute at the trial that there was a conspiracy. The only issue which the jury had to concern themselves with is whether the prosecution had made them sure that this applicant was a party to the conspiracy.

[6]As one can see from the sentence that was passed on the applicant in relation to the sentences passed on the other co-defendants, it was the judge's view that the applicant was at the top of the chain with which he was concerned.

[7]The indictment alleged a conspiracy between 1st July 2006 and 28th February 2007 to import into the United Kingdom and then supply both heroin and cocaine. That was sourced from Belgium. There were two actual importations which the prosecution were able to prove. The first was in September 2006, which concerned 10 kilograms of heroin and 8 kilograms of cocaine and the second in October 2006, 10 kilograms of heroin and 10 kilograms of cocaine. Thus the total was 38 kilos of Class A drugs. Some of the second importation was recovered by the authorities and tested. Four kilograms of that were found to have a purity of 58 per cent.

[8]The drugs were delivered to teams in Merseyside and Lancashire. In Lancashire the drugs would go to a team, which included members of the travelling community outside Accrington.

[9]It was the prosecution case (accepted by the judge when sentencing) that the applicant played the leading role in the conspiracy. The applicant was living at the time in Belgium and was, on the prosecution case, which the jury must have accepted, responsible for sourcing the 38 kilos to which we have made reference. Craw and Marshall were, on the prosecution case, his two lieutenants.

[10]It is not necessary to go into the facts in any great detail, because the issues that are raised by the grounds of appeal are narrow.

[11]We start with ground 1, which concerns the evidence relating to a mobile phone and in particular, the phone which had the numbers 8136. That was a phone that had been acquired in Belgium. It was the prosecution's case that it was the applicant who was using that phone.

[12]Letters of request were issued to Belgium under section 9(2) of the Crime International Co-operation Act 2003, so that the telephone records in relation to that and other phones could be introduced into evidence during the trial. Whoever was using the 8136 number must have been a very senior figure in the conspiracy, having regard to the calls made to the co-defendants in this country.

[13]What happened was that the prosecution were given by the Belgium police force, pursuant to the letters of request, a series of documents which related to the 8136 number.

[14]Those records were in the form with which courts are familiar, when looking at mobile phone records, showing the time and duration of calls and the number called or the number from which a call was being received. There was no accompanying statement although the prosecution sought to obtain one.

[15]Counsel for the applicant argued, unsuccessfully before the trial judge, that the records which the prosecution had received from the Belgium authorities, did not satisfy the hearsay provisions and in particular section 117. It seems clear that someone, either an employee of the Belgium phone provider, or possibly a police officer, must have interrogated the database of the phone company's computer and extracted data relating to 8136, as well as the phones.

[16]In order to come within the hearsay provisions, a statement must be a representation of fact made by a person. It seems to us very arguable that the records, which were produced by the Belgium authorities and handed to the prosecution, were not in fact statements made by a person. If, on the other hand that is wrong, and one concentrates on the person who interrogated the Belgium provider computer and obtained the data for the 8136 phone, and if one assumes that in that respect a person is making a representation for the purposes of section 115, then the issue has to be whether it is admissible under section 117. The judge held that it was.

[17]Turning to section 117(2), the document has to have been either created or received by a person in the course of the trade, business, profession or other occupation. It was accepted by Mr Csoka, on behalf of the applicant, that if the statement extracting the data relating to 8136 had been created by an employee of the Belgium phone provider, then it would have been created in the course of a trade or business. He argued, wrongly in our view, that if it was a police officer who interrogated the computer and created the document, that would not be in the course of a trade, profession or business or other occupation. In our view it clearly would be. In any event Mr Cummings points out that the document had been received by a person in the course of trade, business, profession or other occupation.

[18]Turning to the other requirements which are to be found in section 117(2)(b), subparagraph (b) provides that the requirements of the subsection are satisfied if the person who supplied the information contained in the statement, had or may reasonably be supposed to have had personal knowledge of the matters dealt with. In so far as we are concerned only with the extraction of information, that would clearly be satisfied because that person would have had personal knowledge of the extraction process. Subparagraph (c) is not relevant.

[19]There was, we note, no real issue as to the authenticity of these records because there was corroborative evidence in the records relating to other phones belonging to co-defendants, and to the probe evidence to which we shall turn shortly. That also tended to authenticate the records which had come from Belgium.

[20]Mr Csoka was driven back, at the end of the day, to an argument that in the absence of a statement from an employee of the Belgium provider of the phone, then these documents were inadmissible. Whereas such a statement may well often be desirable, we see nothing in section 117 that requires a statement. Of course, the judge has to be satisfied that the conditions as set out in section 117(2) are met. But the judge is entitled to reach the conclusion that they are met, simply by looking at the documents and if, on the face of them, he is entitled to draw an inference that those conditions are met, then that will be sufficient. We see nothing in ground 1. We turn to ground 2. We did not call upon Mr Cummings to answer ground 2 and we can deal with it briefly.

[21]A probe was put into the car of a co-defendant and by virtue of that probe, the police were able to hear conversations in the car and also, of course, one end of any telephone conversation with a person in that car.

[22]A discrete objection was taken by Mr Csoka only to some parts of the transcript of the probe. They recorded conversations between a co-defendant and a man who was not a co-defendant. Thus, so it was agreed, the common law rule about statements made in furtherance of a conspiracy by an alleged conspirator did not apply.

[23]The probe evidence showed that Craw received a phone call from "Michael" or "Damien". There is no dispute that the jury were entitled to conclude that the reference to "Michael" and "Damien" was a reference to the applicant. The prosecution had not taken a statement from Craw and had no intention of calling him. We shall assume that the statement was hearsay.

[24]The judge went through section 114 with commendable care. Mr Csoka rightly accepted, during the course of our argument today, that there could be no criticism of the judge for the exercise of his judgment in applying section 142 and ruling that the material was admissible.

[25]Mr Csoka now says that although the trial judge was right in his analysis of section 114, in the light of the later decision of R v Z

[2009] EWCA Crim 20

the judge made an error of law in not examining section 116.

[26]In our view, there is absolutely no merit in this argument. Z is concerned with a statement made by a person who said that she had been raped and abused by the appellant. That person was alive and could have given evidence in the case. This court was concerned about the court's failure to take into account section 116 when applying section 114. That is not this case at all. This is a case of a contemporaneous recording of a remark made by a co-defendant, that he had telephoned the applicant, and having applied the various criteria, in section 114(2), it seems to us inevitable that the judge would have found and properly found that this evidence was admissible.

[27]We turn to the third ground upon which the single judge was not asked to rule. Crucial, as we have said, to this case was the identity of the person using 8136. There was ample other evidence against the applicant. In so far as phone 8136 is concerned, if the applicant was using it, then there was no dispute that he must have been the organiser of the drug supplies.

[28]In his defence statement, the applicant said nothing about the 8136 other than to deny that it was he that was using it. When he gave evidence for the first time, he associated the phone 8136 with a man called Dion Lee and the applicant said that it must have been Dion Lee who was using 8136 although he could give no direct evidence that that is what had happened. He told the jury he had reached that conclusion from an analysis of the detailed schedules of phone calls between the various co-defendants and in particular phone calls with Majeed Shah.

[29]The jury heard that Dion had previous convictions for drug offences. The proposition that Dion Lee was involved in drugs and may have been involved on the peripherally of this conspiracy was not something which the prosecution challenged.

[30]What has emerged since the trial is that Dion Lee was at the time at the head of a major conspiracy to export Class A drugs from Holland to the United Kingdom and in particular into Lancashire during part of the indicted period. It is submitted that if the jury had known that, then the verdict may well have been different because the jury would have attached greater credence to the evidence that the defendant was given that it must have been Dion Lee who used 8136 and not the appellant. We therefore ask the respondent, Mr Cummings QC, to meet the point that this fresh evidence might have resulted in a different verdict.

[31]We have gone through the evidence to which Mr Cummings refers in some detail with him. There are, as he points out, a whole host of reasons for not accepting this submission. Mr Cummings analysed for us not just this phone but the other phones that were used. There was no dispute that there was a phone in use by the applicant before the start of the use of the 8136 phone. There was no dispute that as soon as the 8136 phone ceased to be used then the applicant started using another phone 5384. Within a very short time of 8136 not being used 5384 was being used in very similar circumstances. Furthermore there was independent evidence that the 8136 phone was connected to the applicant through the probe evidence which we have mentioned.

[32]There was also the use of a land line, which appeared to be used at the same time as the 8136 phone and from that land line, phone calls were being made which could not have been made by Dion Lee having regard to the number which was being called. It is right to say that the applicant said that he knew or had been with Dion Lee when he had used that land line.

[33]If we had given leave to permit this fresh evidence to be called, then the prosecution would have relied upon cell site evidence which is analysed for us, particularly in a document headed "Crown's response to the applicant's disclosure request, page 6 onwards." What the prosecution show here is that cell site evidence relating to the 8136 phone showed that it was impossible for Dion Lee to be both using the phone that he was using as part of the other conspiracy and also the 8136 phone. All in all we have no doubt that even if the jury had known that Dion Lee was the head of a major conspiracy at the same time it would not in any way have affected the verdict.

[34]We turn briefly to the renewed application for leave to appeal sentence. The single judge, Maddison J, said this:

"Though the Judge made no specific finding in relation to the purity of all the imported heroin, only a proportion of which was recovered, there was reason why, absent any evidence to the contrary, he should not have proceeded on the basis that all the heroin was approximately the same purity as that recovered. On such a basis, the pure weight of the heroin would have been about 12 kgs. In addition cocaine of an unknown purity but with a gross weight of 18 kgs was imported. The sentence passed was entirely consistent with the guidance in R v Aramah [1982] 4 Cr App R(S) 407, that '...where the weight at 100% purity is of the order of 5 kgs or more, sentences of 14 years and upwards are appropriate.' The Judge, for reasons clearly explained in his careful sentencing remarks, was satisfied that you were the main player in a substantial conspiracy relating to the importation of Class A drugs."

[35]Before us Mr Csoka has pursued his argument that the judge could not be sure of the purity of the drugs and therefore could not be sure that this fell into the category of more than 5 kilograms.

[36]In our view, that argument is completely misconceived. There was here a total of 38 kilos of drugs. A sample revealed, as we have said, a purity of 58 per cent and there is not the least evidence on the papers, to suggest that there was any complaint made about the purity of the drug.

[37]Here is a man who was involved from abroad with a substantial importation of heroin, who had a previous conviction for money laundering in relation probably to tobacco, who did not have the benefit of a plea of guilty. It cannot arguably be said that a sentence of 20 years' is manifestly excessive.

[38]Complaint is also about a travel restriction order made against the applicant. The judge had in mind that this conspiracy had been run from Belgium, that the applicant had criminal associates in Belgium who could provide him with heroin and cocaine, and felt that, in those circumstances, an order preventing his travel abroad would make it less likely that the applicant involved was involved in drug activity following his release. We remind ourselves that the travel restriction order covered the period that he was to spend on licence in any event, and that an application may be made after 5 years to have the restrictions lifted. It is submitted that such an order was not necessary. In our view, the judge was fully entitled and in accordance with leading authority of R v Nee

[2004] 2 Cr App R(S) 81

to make the order. It certainly cannot be said that the making of such an order was wrong in principle or manifestly excessive. For those reasons all these application fail.

LORD JUSTICE HOOPER: What is your situation Mr Csoka. You have a representation to do what?

[40]MR CSOKA: To argue the Dion Lee ground.

LORD JUSTICE HOOPER: Ground 3.

[42]MR CSOKA: Yes.

LORD JUSTICE HOOPER: Covering your argument here today. Are you asking for anything further?

[44]MR CSOKA: It certainly covers my travel and some of the hours but it is clearly a matter for my Lords.

LORD JUSTICE HOOPER: You are being modest and not making an application but we will consider whether you should be granted any further representation order. (Short Adjournment)

LORD JUSTICE HOOPER: Although you have not requested it, we think you are entitled to a representation order to cover the whole of today and a representation order to cover your preparation on ground 3.

[47]MR CSOKA: I am very grateful.