South, R. v [2011] EWCA Crim 754

[2011] EWCA Crim 754Case No 201005518 D4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 18 March 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE AIKENS
MR JUSTICE KEITH
MRS JUSTICE THIRLWALL DBE
Between
R E G I N ACrownv
Between
SERGIO CHARLES SOUTH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr D Claxton appeared for AppellantMr S Jones appeared for Crown
J U D G M E N T

LORD JUSTICE AIKENS:

[1]This is an appeal against conviction by Sergio South. The appeal is made with the leave of the single judge.[2]On 9 September 2010 in the Crown Court at Bournemouth, after a trial before HHJ Harvey Clark QC and a jury, the appellant was convicted of burglary. On 8 October 2010 the appellant was sentenced to 39 months' imprisonment for that offence. At the same time, he was sentenced to a total of 15 months' imprisonment for other offences with which we are not concerned. The total sentence of imprisonment imposed was therefore 54 months. The judge ordered that 185 days spent in custody on remand should count against that sentence.[3]The facts giving rise to the charge are as follows. On 13 November 2009 a house at 67 Richmond Park Road, Bournemouth was burgled between the hours of 12.30pm and 3.30pm. At the time three students lived there. One of them was Spencer Dale. The other two students were Jason and Shane Morgan. Mr Dale left the house at about 12.30pm. He did so through the back door, as was the usual practice for the three students who preferred to use that door rather than the front door. The two Morgans were at that time asleep.[4]At about 3pm Jason came downstairs and saw that the glass pane to the front door, just above the lock, had been smashed and that the door had been opened. A plastic money jar, aftershave, perfume, an iPod Shuffle, an X-Box, a camera and a black rucksack had all been taken.[5]On the floor below the letterbox of the front door there were some envelopes which had footmarks on them. These envelopes were subsequently given to the police and they were forensically examined. The evidence concerning those footprints was adduced at the trial.[6]The appellant had three previous convictions for dwelling house burglaries between March 1998 and July 2003 and one conviction for attempted dwelling house burglary in October 2007. He was arrested in respect of this case on 15 November 2009, and his clothes and shoes were taken by the police. Amongst his possessions the police found an iPod. On the following day Mr Dale identified that iPod as being the one that had been stolen in the burglary.[7]The appellant was charged and cautioned on 23 December 2009. He made no reply after caution.[8]The defence case statement was served in March 2010. It did not mention a defence of alibi. On the first day of the trial, on 6 September 2010, the appellant served a Notice of Intention to introduce Alibi Evidence.[9]At the trial the prosecution case was that the appellant had burgled the house. The prosecution relied on(1) the forensic evidence concerning the footmarks on the envelopes, which the forensic scientist, Michael Jones, said provided "moderately strong" evidence as coming from the footwear seized from the appellant.(2) The prosecution relied on the fact that the iPod which Mr Dale had said was his and was taken from the house was found in the appellant's possessions upon arrest.(3) The prosecution was permitted to adduce "bad character" evidence of the appellant's previous convictions concerning dwelling house burglaries. The prosecution said that those convictions demonstrated a propensity to commit similar offences such as this one.(4) The prosecution relied upon the fact that the appellant had had the opportunity to put forward his alibi defence and an explanation of how the iPod came to be in his possession when he was arrested and cautioned but he had not done so.[10]The defence case was that between 10.30 or 11am until about 4pm on 13 November 2009, the appellant had been at the house of Mr Michael White, helping him repair a motorcycle. The appellant said he had not been involved in the burglary. His case was and his evidence was that he had bought the iPod from a beggar who had asked £10 for it, saying that he (the beggar) had found it in a gutter. The appellant said in evidence that he had given the beggar £3 for it to "get him off my back".[11]After the appellant had given evidence and the defence was about to call Mr Michael White in relation to the alibi defence, the prosecution applied, under section 100(4) of the Criminal Justice Act 2003 to adduce "bad character" evidence relating to Mr White's previous convictions. He was then a man of 49 who had been convicted of 53 different offences of dishonesty between 1978 and 1996. The offences involved theft, burglary, handling, obtaining by deception, forgery, using false instruments and other similar offences. Having heard argument, the judge ruled that the application be allowed.[12]In his ruling the judge said that the evidence that Mr White might be giving from the witness box "is a matter in issue in the proceedings, and insofar as it purports to support the defendant's alibi, is of substantial importance in the context of the case as a whole". The judge held that the fact that Mr White had "so many convictions" for dishonesty went very much to his credibility. The judge said that he recognised that the last of those convictions was in 1996. However, he also said that those convictions showed that for 18 years of Mr White's life he "was habitually committing offences of dishonesty". Therefore, despite the fact that there had been no convictions since 1996, the judge ruled that the fact of those convictions was a matter that should be drawn to the attention of the jury if Mr White gave evidence, because it was a matter that went to his credibility as a witness. It was particularly important, the judge said, because it was the prosecution case that the defendant had "concocted" his alibi.[13]Michael White then gave evidence to the effect that the appellant was with him from about 12 noon on 13 November for about 4-5 hours. He accepted that he had the convictions listed. However, he said, "I don't think that I have ever lied on behalf of myself. Most of the offences I pleaded guilty to, but three or four I pleaded not guilty. When I pleaded not guilty and was found guilty the court got it wrong". Mr White said that the appellant told him in January 2010 that he faced the burglary charge and that it was subsequently, as a result of talking to his partner, that he (Mr White) thought that the appellant was with him on 13 November 2009.[14]When the judge summed up the matter to the jury, he reminded them of Mr White's evidence and the fact of his convictions, and Mr White's evidence about those convictions. The judge did not give the jury any directions on what effect, if any, the fact of those convictions should have on their approach to Mr White's evidence of the alibi or possible alibi of the appellant, or on their approach to the issue of Mr White's credibility as a witness.[15]The principal ground of appeal is that the judge erred in admitting all of the 53 previous convictions of Mr White as "non-defendant bad character" evidence pursuant to section 100 of the Criminal Justice Act 2003. As an alternative, it is submitted that the judge should have restricted the number of convictions that he admitted to those that concerned offences involving "untruthfulness". It is submitted that the judge failed properly to exercise his judgment in not limiting the number of convictions admitted.[16]Sections 100(1), (2), (3)(a) and (b) and sub-section (4) of the Criminal

Justice Act 2003 as follows:

"100 Non-defendant’s bad character. (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole or (c) all parties to the proceedings agree to the evidence being admissible. (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if— (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. (3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; ... (4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."
[17]Mr Claxton, for the appellant, first submits that the convictions of Mr White do not satisfy the conditions of section 100(1)(b). He submits that the evidence of Mr White's convictions do not have "substantial probative value" in relation to a matter which is in issue in the proceeding and it is not of substantial importance in the context of the case as a whole. Mr White's convictions are only relevant to one matter; that is, whether he was telling the truth about the fact or possibility that the appellant was at his house helping him repair a motorbike from about 12 noon to 4 or 5pm on 13 November 2009.[18]This is certainly a matter which is in issue in the proceedings and that matter is of substantial importance in the context of the case as a whole. After all, if the jury thought that the alibi might be true, they would have had to acquit.[19]Therefore the emphasis must be on whether those convictions of Mr White have "substantial probative value" in relation to whether he was telling the truth about the fact or possibility of the appellant being with him at the time the burglary was committed. Mr Claxton in this context reminds us of the remarks of Pitchford LJ in R v Brewster and Cromwell [2010] 2 Cr App R 20 at paragraph 23, where the learned Lord Justice said that the questions are: is the creditworthiness of the witness an issue of substantial importance; and is the bad character relied upon of substantial probative value in relation to that issue?[20]In our judgment, the creditability of Mr White's evidence on the alibi is of substantial importance in the trial as a whole. Therefore, the question is whether those convictions are of "substantive probative value" in relation to that issue. In order to decide that, the judge had to have regard to the factors that are set out in section 100(3). The judge did not say in terms in his ruling that he had had regard to those factors. However, we are satisfied that it is clear that, broadly speaking, he did so.[21]The nature and number of those "events" are 53 convictions for offences of dishonesty over a period from 1978 to 1996. Some 12 of those offences, occurring over the period 1980 to 1996, were, it appears from the antecedents list, for obtaining by deception, forgery and using false instruments. All of those offences must have involved some form of untruthfulness by White, whether in words or deeds. Mr Claxton conceded that much before us.[22]The judge said that he recognised the distinction between offences of dishonesty and the issue of untruthfulness, although he did not go on to say how that should be reflected in the decision that he had to make in relation to the admission of these convictions. The judge did recognise that all those convictions were within the period 1978 to 1996, but he did not distinguish between when the convictions for "untruthfulness" occurred, or what those particular offences were, or whether those "untruthfulness" offences were the subject of guilty or not guilty pleas.[23]The offences of "untruthfulness", by which we include obtaining property by deception, using forged instruments and forgery, were, as we have noted, committed between 1980 and 1996. In particular, we note that in 1990 Mr White was put on probation for 18 months for two offences of forgery and three of using a false instrument under the Forgery and Counterfeiting Act 1981, and in 1996 he was put on probation for two years for obtaining property by deception. We do not have any further details of those offences and it does not appear that the judge did either.[24]Perhaps because the judge did not have details of those offences, he did not consider at all the matter of the similarities and dissimilarities between those offences and what Mr White was alleged to have done or be about to do in this case, viz to give a false statement and to lie on oath that the appellant was with him on 13 November 2009. The judge should have done that comparison to see if the similarity was such that it demonstrated that there was a substantial probative value in the convictions (or some of them) of Mr White, in relation to the truthfulness or otherwise of his proposed alibi evidence.[25]In our judgment, the judge failed properly to make a full assessment of the probative value or otherwise of the convictions of Mr White to see if they did have a substantial probative value in relation to the matter of his proposed evidence concerning alibi of the appellant. However, we have also concluded that if he had done this exercise, he would have been bound to conclude that the convictions which related to "untruthfulness", i.e. those of obtaining property by deception, forgery and using false instruments, did have substantial probative value in relation to his proposed evidence concerning the alibi of the appellant. Therefore the judge would have been bound to permit those to be adduced as "non-defendant bad character" evidence. However, we conclude that he would not have permitted the adduction of the remaining convictions.[26]The question, therefore, is whether the introduction of irrelevant convictions and the failure to give any direction to the jury on how they should approach the issue of Mr White's credibility and his evidence in the light of those convictions which were admitted in evidence, makes this conviction unsafe.[27]The fact that the iPod was recovered from the appellant's possessions two days after the burglary was powerful evidence against him. We are unimpressed by the submission that the appellant's explanation of the purchase from the beggar was credible. We are quite satisfied that a jury would have regarded that explanation as incredible.[28]Mr Claxton submitted that there were difficulties about the evidence of Mr Jones, the foot imprint specialist. Mr Claxton pointed out that Mr Jones had said that the evidence relating to the footprint was "moderately strong support" for the proposition that the appellant's shoe had made the imprint on the envelopes. Mr Claxton told us that, in cross-examination, Mr Jones had said that this expression reflected a statistical probability of the footprint having been made by the shoes of the appellant which was considerably more than a 50 per cent probability, because the linguistic phrases used, such as "weak or limited support" or "extremely strong support", were based on probability which was itself based on a logarithmic scale.[29]In connection with this point, Mr Claxton referred us to statements of Thomas LJ in R v T (Footwear mark evidence) [2011] 1 Cr App R 9 at paras 73 and 74 in particular. Thomas LJ, giving the reserved judgment of the court, stated that if a footwear examiner expressed a view that went beyond saying that the footwear could or could not make the mark concerned, the report should make it clear that the view is subjective and based on experience of the examiner, so that words such as "scientific" used in making evaluations should not in fact be used because they would, before a jury, give an impression of a degree of precision and objectivity which is not present given the current state of expertise. The factors that the expert does use should, however, be set out and explained.[30]In the present case, the evidence was that Mr Jones had worked as a scientist in this area since 1982 and had been involved in numerous cases concerned with footwear analysis and comparison of footprints. His evidence was that this footprint was in agreement with the size, pattern, detailed alignment and degree of wear with the trainer of the appellant that had been seized from him upon arrest. The zigzag bar pattern and the curved tramline were similar, and the trainers, which were size 9, were consistent with the footprint which was of size 9 or 8 but not size 10. Mr Jones' evidence was that he encountered the type of footwear seized from the appellant in only 2 per cent of cases that he dealt with as a forensic examiner of footwear and footprints. He also said that burglars frequently used sports trainers.[31]In our view, the evidence of the expert did not transgress in any way the guidelines set down by this court in R v T. Mr Jones' evidence was based on his experience, and he gave his evidence in a manner which enabled the jury to make a decision on whether or not they were sure that those footprints were made by the appellant's trainers.[32]In addition to that scientific evidence, there was the fact that the three occupants of the house did not use the front door habitually to get in and out; they used the back door.[33]In addition, there was the supporting evidence of the failure of the appellant to mention at the time of charge and caution either the alibi or how he got the iPod. Indeed neither was mentioned in the defence case statement. Mr Claxton pointed out that the prosecution knew of the proposed alibi defence and Mr White's proposed evidence at the time of the first PCMH, and that the prosecution also knew the evidence about the purchase of the iPod at an early stage. But the fact remains that the appellant was not prepared to put those in a formal document until a much later stage in the proceedings.[34]As noted, the question we have to ask is whether this conviction is safe despite the fact that the judge wrongly admitted all 53 convictions of Mr White as "non-defendant bad character" evidence and failed to give the jury any direction on how to approach Mr White's evidence in the light of that back character evidence of all his previous convictions.[35]We have, after analysis and consideration, come to the very clear conclusion that this conviction was entirely safe. There was powerful evidence against the appellant in the form of the recent possession of the iPod, the incredible story of the purchase of it and the footmark on the envelopes at the front door where the burglar had broken in. In support, there was the failure to mention the alibi defence or the purchase of the iPod at the charge and caution stage. There was the late introduction of those two aspects, and the properly admitted evidence of the appellant's previous convictions for burglary.[36]Therefore we must dismiss this appeal.