Salter, R v [2010] EWCA Crim 2429

No: 200905837 D4[2010] EWCA Crim 2429
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 7th October 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE GRIFFITH WILLIAMS
HIS HONOUR JUDGE ROOK QC
(Sitting as a judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
MATTHEW ROBERT SALTER
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7422 6138(Official Shorthand Writers to the Court)
Miss A Vigars appeared for AppellantMr J Tucker appeared for Crown
J U D G M E N T
[1]MR JUSTICE GRIFFITH WILLIAMS: This is an appeal against conviction by leave of the single judge. The appellant was tried at the Crown Court at Bristol on an indictment which contained 17 counts of theft. He was convicted of eight counts and acquitted of nine counts. On 4th November 2009 he was sentenced by the trial judge, the Recorder of Bristol, to a community order of 18 months with an unpaid work requirement of 150 hours.[2]The appellant is the younger son of Penelope Salter, who is retired and lives in Cornwall. He has an elder brother, Richard. The appellant lives in Weston-super-Mare with his partner and young family. Following the ending in 2001 of a relationship with a former partner, he has been in debt and he has no bank account of his own. The victim of the theft offences was his mother. She had a bank account with HSBC and a direct debit card and a Maestro card in respect of that account.[3]The case for the prosecution was that the appellant, between 18th January 2005 and 23rd October 2007, used his mother's debit card and her Maestro card details to pay over the telephone or via the internet for a variety of services and items and that, with the one exception of the first occasion, they were without his mother's knowledge and approval. The offending came to an end when his mother was told by the bank of an overdraft and following a complaint by her the bank froze her account.[4]The appellant's case was that between 2005 and 2007 his relationship with his mother was fine, and there was no issue as to that. He spoke to her at least twice a week and always obtained her permission before he used her card details. Of the 17 counts in the indictment, he had her permission to use her card details in respect of 15. Of the remaining two, counts 2A and 5, he had no knowledge.[5]The sole ground of appeal is that the verdicts are inconsistent, one with another, and are not susceptible of logical comprehension. It is submitted that the jury must have followed either an impermissible or a muddled path to their decisions.[6]There have been many decisions of this court on inconsistent verdicts, notably Rafferty and Rafferty [2004] EWCA Crim 968. In Sukhbir Dhillon [2010] EWCA Crim 1577, Elias LJ, giving the judgment of the court, referred to Rafferty and Rafferty and other decisions, which in the court's view he said established the following principles. First, the test to determine whether a conviction can stand is the statutory test, whether the verdict is safe. Second, where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition: see Rafferty and Rafferty (above). Third, even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency; it is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed. As to that condition, Elias LJ observed later in the judgment, paragraph 36:
"But in some cases it may be possible to see why a jury applying common sense and their experience of life has reached the verdicts it has, even though its analysis cannot withstand rational scrutiny."
Fourth, the burden of establishing that the verdict is unsafe lies on the appellant. Fifth, each case turns on its own facts and no universal test can be formulated. As to these fourth and fifth principles, they are based on the decision of this court in a judgment given by Lord Phillips, CJ (as he then was), in Ashley Mote [2007] EWCA Crim 3131.[7]With those principles in mind, we turn to consider the evidence.[8]Count 1. This was a specimen count relating to payments to Sky TV. In January 2005 there was a payment made to Sky TV using the debit card in order to reconnect the appellant's Sky TV services. There followed a further 22 payments until September 2007, all listed in Schedule 1, a document before the jury. The initial payment was made by the complainant. There were thereafter a further four monthly payments made by direct debit. These were followed by a further 19 monthly payments made by way of the Maestro card with sums of up to £150 per month being paid over. The total value of the 23 transactions was £1,959.71. The appellant's mother said that she had allowed the appellant to use her direct debit to have his Sky TV services connected. She thought that when she spoke to Sky she had simply authorised a one-off payment for setting up the system. She had not expected to pay the continuing subscription, but in cross-examination she said it was possible that Sky had set up a direct debit and that she had misunderstood the situation, but she reiterated that she had not agreed to pay continuously on a monthly basis. In the light of that admission the learned judge directed the jury in summing-up that they should concentrate on transactions numbered 5 to 23, in respect of each the payment being made by the use of the Maestro card.[9]The appellant's case was that he had rung his mother and had asked whether she would assist him in getting reconnected to Sky, that she had spoken to Sky and afterwards rung the appellant and told him that she had made the payment. In relation to the later payments his case was that she had consented to each and every one of them. He accepted that all of the payments were made for his benefit. He was convicted of that count.[10]Counts 2 and 2A. In June 2005 there was a payment by direct debit to Norwich Union in the sum of £39.56 for the appellant's car insurance. The appellant said it was made with his mother's consent, his mother having provided the card details. She said that she was unaware of the payment and of a later payment by direct debit in August 2005 of £296.99. The appellant said that he knew nothing of that payment. He said that he had changed his car insurers after making the first payment and so this was not the payment of the balance. The appellant was acquitted of both counts.[11]Count 3. In August, October and December 2005 three payments were made by use of the Maestro card to Direct Auto Finance totaling a little over £700. The appellant's mother said that she knew nothing about the payments. The appellant's case was that they were made with her consent, she having agreed to help him to avoid his Vectra motorcar being repossessed. The appellant was acquitted of that count.[12]Count 4. Between August and October 2007, 11 payments totalling £820.97 were made to three telecommunications companies, BT, PO Homephone and T-Mobile. Eight payments were made by the Maestro card, three by direct debit. The appellant said they were all made with his mother's authority. She said that she knew nothing of the payments and had not given her authority. The appellant was convicted of that count.[13]Counts 5 and 5A. Between December 2005 and August 2007 three payments totalling £1,333.28 were made by use of the Maestro card details to bailiff companies, Drakes and Equita. The appellant said that he knew nothing of them and his mother said that she too knew nothing of them. Between November 2006 and August 2007 ten payments totalling £340 were made by use of the Maestro card to bailiffs called Chandlers. They were in respect of outstanding council tax. The appellant said the bailiffs had called when his mother had been visiting him and she offered to pay the whole amount outstanding by cheque, but he refused. When the council agreed that he could pay at a monthly rate of £31, his mother agreed to make each and every payment. His mother said that she knew nothing of the payments and denied being at the house when the bailiffs called. The appellant was acquitted of both these counts.[14]Count 6. Between August 2006 and September 2007 two payments totalling £87.30 one using the direct debit details, the other the Maestro details, were made to the car insurers Sheila's Wheels. The appellant's mother said that she knew nothing about the payments. The appellant said that he had decided to change his car insurance from Norwich Union and his mother was happy to set up a direct debit with Sheila's Wheels. He had asked her to fund the payments and she had agreed to do so. The policy was subsequently cancelled because he changed his car. The appellant was acquitted of that count.[15]Count 7. Between September 2006 and September 2007 ten payments totalling £1,398.42 using the Maestro card details were made to Welcome Finance. The appellant's mother said she knew nothing of them. The appellant said that he had changed his car and his mother had consented to payments in respect of his new car. The appellant was convicted of that count.[16]Count 8. Between February and September 2007, 11 payments totalling £3,029.68 using the Maestro card details were made to HG Car Hire. The first of the payments was in relation to a small car that had been hired to get the complainant back to Cornwall from Somerset. The appellant's mother said that she had provided the appellant with her card details for the purpose of that journey to Cornwall. All subsequent hirings were of a Zafira motorcar. In cross-examination the appellant's mother accepted that a car had also been hired to assist her with a house move in the summer of 2007, that she had authorised payment for that car hire and there were further occasions on which the appellant helped to transport a washing machine, had helped her with decorating and had come down to see her on holiday in a hire car, but her evidence was that she was amazed to see him using a hire car other than on the first occasion. The learned

judge directed the jury in respect of that evidence as follows:

"... it follows from the evidence of Mrs Salter that some of those payments for the Zafira were authorised by her. You are dealing with ten transactions in relation to the Zafira up to 12th September 2007. The question for you will be whether you are all agreed that, in relation to any of one of those ten transactions, the hire charges were unauthorised and the credit balance was stolen by the defendant."
The appellant was convicted of that count.[17]Count 9. Between April and October 2007 six payments, totalling £172.16, the first with the Maestro card details, the remaining five with the direct debit details, were made to BDML Connect Limited. They were in respect of the installation of a broadband connection at the appellant's house. The appellant's mother said she knew nothing about them. The appellant's evidence was that he had consulted his mother and she had consented to each and every payment. He had set up a direct debit instruction over the phone with her consent, she having agreed to help until he had sorted himself out. He was acquitted of that count.[18]Count 10. Between May and September 2007, 25 payments, totalling £1,103.60, all by using the Maestro details, were made to Paypal in respect of internet purchases on Ebay. The appellant's mother said that she had not authorised any of the payments. The appellant's evidence was that all of the payments, even the modest ones of a few pounds, were made with her consent and that he had spoken to her on the phone before each of them was made to obtain her permission. The appellant was convicted of that count.[19]Count 11. Between June and September 2007, 12 payments totalling £1,375 using the Maestro card details were made to four catalogue companies selling clothing. In September alone £1,090 was spent using the card. The appellant's mother said that she had not authorised any of the payments. The appellant's evidence was that she had consented to all of them. His evidence was that the payments did not necessarily relate to specific purchases, but the sums were to pay off debts he had accrued with the companies. The appellant was convicted of that count.[20]Count 12. Between July and August 2007 three payments totalling £484 using the Maestro card details were made to Coppett Hall Beach Hotel. Again, the appellant's mother said that she had not authorised payment for the appellant's stay at the hotel. The appellant's evidence was that she had approved the payments as a thank you to him for helping her to move house and that she had thereafter agreed to pay an additional two days stay once his family were at the hotel. He was convicted of that count.[21]Count 13. In May 2007 payment was made using the Maestro card details to Warwickshire County Cricket Club for a ticket to the value of £61. Again, the mother's evidence was that she had not authorised payment. She also denied that the appellant had sent her money to cover the payment. The appellant's evidence was that he had her permission to use the card and that he had sent her £60 by post in repayment. He was acquitted of that count.[22]Count 14. In May 2007 a payment of £220.66 was made using the Maestro card details to Shearmus Garage in Weston-super-Mare. The appellant's mother said that she had not authorised that payment and had not agreed to pay for a set of tyres for the appellant's motorcar. The appellant's evidence was that he had had to purchase four tyres for his Vectra motorcar to get it through the MOT and that his mother had authorised payment. In cross-examination he was unable to say why he was still hiring the Zafira motorcar at the same time as he was paying for tyres for his motorcar. He was acquitted of that offence.[23]Count 15. In August 2007 payment of £155 was made, again using the Maestro card details, to the Gascony Hotel in Minehead. The appellant's mother said she knew nothing about it and had not authorised it and the appellant was lying if he said that he had sent her cash in the post for repayment. The appellant's evidence was that the payment in respect of an overnight stay at the hotel had been authorised by his mother and that he had repaid her by sending her the cash by post.[24]The Recorder of Bristol directed the jury to consider each count separately and directed them that they could acquit of all, convict of all, or acquit of some and convict of some. No criticism is made by Miss Vigars of that direction. She accepted that different considerations applied to counts 2A and 5A and to counts 13 and 15, so that there could have been different verdicts in respect of those two pairs of counts. She did not go so far as to submit in respect of the remaining counts that they stood or fell together. She submitted that the verdicts reached by the jury were inconsistent one with another in a case which turned upon the veracity of the appellant's mother, and that there was no evidence, apart from that given by the appellant's mother, which could have formed different considerations in relation to different counts, and there was certainly no evidence which in relation to each acquittal, or each conviction, marked the difference between the conclusions of the jury. She relied, in particular, on the verdicts in respect of counts 13 and 15, which, as we have indicated, on essentially the same facts resulted in different verdicts.[25]We are concerned principally with the counts on which the appellant was convicted. In each case the verdict turned on an acceptance of the evidence of Mrs Salter and a rejection of the appellant's evidence. That was very much a matter for the jury, which not only heard the evidence but which was in a position to see the witnesses and to form a view as to their reliability and credibility. It is trite law that a jury is entitled to accept part of a witness's evidence while rejecting or not being sure about other parts of a witness's evidence. We observe that as to the generality of her evidence, that is to say her allegation that the appellant had used her bank accounts without her permission, there was some support in the evidence of her elder son, who gave evidence that he had been telephoned in 2007 by his mother, who was worried and upset and wanted him to look at her bank statements. When he visited her, he found her in an upset condition. In the summing-up the Recorder of Bristol directed the jury to have regard to that evidence and said this:
"Was it a genuine reaction, did it reflect the fact that she considered that she had been the victim of theft? Or might it simply have been a reflection of confusion or even of dishonesty on her part?"
From the fact that the jury convicted on eight counts of this indictment, it is apparent that the jury accepted that the upset condition witnessed by the elder son was genuine.[26]In the course of her evidence, Mrs Salter said that she had never given her card details to anyone other than the appellant. She said that after she had been told by the bank that her account was overdrawn she had spoken to the appellant, who said, "I did it for your grandchildren". She said that she had made up a list of fraudulent transactions, but she agreed that four entries in that list, none the subject of a count on the indictment, were not fraudulent. One was a payment of hers to Toys R Us, the second a payment to a garage in Plymouth to assist her elder son, the third a payment to Tesco for groceries when she was staying with the appellant, and the fourth a second payment on behalf of her elder son. The learned

judge directed the jury in respect of this evidence:

"So in respect of those items, the schedule that has been drawn up by Mrs Salter has been shown to be in error. Most of these transactions, of course, are there for your consideration but you must take into account those four specific examples in assessing her reliability and her honesty. Do they demonstrate unreliability or malice or simple mistake."
[27]The elder son, Richard Salter, in his evidence, said that his mother had helped him financially on five or six occasions.[28]We observe that of the counts of which the appellant was acquitted, for the most part they concerned small sums and related to payments in respect of services essential to the appellant's needs for transport (counts 2, 2A, 3, 6 and 14) and to pay his council tax (count 5A). The jury may well have concluded that Mrs Salter had, or may have, forgotten that she had helped the appellant with those payments, just as she had helped her elder son on other occasions. By convicting the appellant of the other counts their conclusion was that she had not given permission for the funding of what the Recorder of Bristol termed in his sentencing remarks, "small luxuries".[29]As to counts 13 and 15, the logical inconsistency is said to be, on the one hand, the jury's rejection of Mrs Salter's evidence that she had authorised the payment for the cricket club ticket and acceptance or non-rejection of the appellant's evidence that he had posted the £60 to her, and, on the other hand, their acceptance of her evidence and the rejection of his evidence in respect of the payment to the Gascony Hotel.[30]In our judgment, it has not been demonstrated that there is an inconsistency, logical or otherwise, in those verdicts. The jury had to be sure to convict. They were sure of Mrs Salter's evidence in respect of one count and were not sure of her evidence in respect of another. It is clear to us that following a careful summing-up, which would have been of considerable assistance to the jury, the jury approached their task by considering each count separately and by reaching separate verdicts in respect of those counts. We are not persuaded that there is any inconsistency between any pairs of counts or as between the counts upon which there were convictions and the counts upon which there are acquittals. We are not satisfied that there are any grounds for concluding that the appellant's convictions were not safe. For all those reasons the appeal is dismissed.