REGINA v JHOSMARK VANEGAS [2014] EWCA Crim 2911

[2014] EWCA Crim 2911Case No 201405139/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 19th December 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
Between
R E G I N ACrownv
Between
JHOSMARK VANEGAS
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 7831 8838(Official Shorthand Writers to the Court)
Mr R Offenbach appeared for AppellantMr A Jordan appeared for Crown
J U D G M E N T

LORD JUSTICE ELIAS:

[1]This is an unusual case. It concerns an application for leave to appeal against conviction which was referred to the full court by the single judge. On 13th October 2014 at the Central Criminal Court before Mr Recorder Hardy QC the appellant was convicted of blackmail and the following day he was sentenced to 30 months' imprisonment. A co-accused had pleaded guilty both to blackmail and to a count of handling stolen goods. The case against the applicant was that that he was party to that blackmail.[2]The circumstances of the alleged offending can be briefly summarised. The applicant, his co-accused and the complainant worked for a large cleaning company at the Barbican Centre. The complainant had been engaged in an extra marital affair with a manager. In fact, by the time of the blackmailing the affair had long finished and the complainant was an assistant manager. She had initially been promoted by the person with whom she was having an affair. That fact, together with her management style, gave rise to a number of complaints from the workforce.[3]In February 2014 she received 13 text messages from a prepaid mobile telephone which told her that the sender knew that her husband was in London and there were photographs and videos of her with the man with whom she had had the affair. The sender demanded payment of £5,000 to a specified bank and threatened that otherwise the information would be sent to her husband.[4]There was evidence of the co-accused purchasing a SIM card for the mobile telephone and the police also recovered letters and other material which had been stolen from the complainant's locker at work and was at his home address.[5]The case against this applicant was essentially that he had helped draft the text and arranged for the transfer of the money. The critical question for the jury, as the judge made plain on at least three occasions in the summing-up, was whether the jury were sure the applicant was a knowing party to the blackmail.[6]Following the conviction the applicant was led away to the cells. At that point the judge made a remark about the gracious way in which he had conducted himself. The lady foreman then asked to speak. The judge directed that she should speak to the usher. There was a communication to the usher and the jury then retired.[7]The usher then went into the witness box, took the voir dire oath and told the judge and counsel what the jury foreman had said to her. The relevant transcript of what occurred is as follows:
"JUDGE HARDY: Can you tell the court, please, as best you're able, what you recollect she said? [USHER]: She said the evidence was weak, but we had no alternative other than to convict him, and she said -- I don't know about 'she' or 'they' -- felt that he was an unwilling, and there was another word -- JUDGE HARDY: Unwitting? [USHER]: Unwitting partner in this crime, of which I have just made that second bit up, but... JUDGE HARDY: Yes, so is that your rendition of your understanding of what she said? [USHER]: Yes, that's right."
No further questions were asked of the usher by counsel. Following further discussion the judge recalled the jury into court. He had in fact by then received a note from the lady foreman in which she said:
"My Lord we're not all in agreement. My statement is withdrawn. Thank you very much."
Notwithstanding that note, he did investigate what the foreman had said in the way we have described.[8]When the jury returned

the judge indicated that there may be some ambiguity which he wished to clarify and he said this:

"I am going to ask you to go out and retire again for no longer than ten minutes or thereabouts, and for you to indicate in writing, through your foreman, whether the verdict that you have returned of guilty was the verdict of you all, and that you are all in agreement with it, and whether that verdict, reflects the direction that I gave you, namely this: you can only convict if you are sure that this defendant was knowingly a party to the blackmail effected by Mr Tapir. Now, 'knowingly' means just that; it means some degree of knowledge."
A note was duly returned which said as follows:
"We all agree that the defendant is guilty as charged and knowingly involved in Mr Tapir's blackmail. This is the unanimous verdict of all 12 jurors."
[9]The applicant submits that in view of the observations of the foreman this verdict cannot be considered safe. If the jury had considered the evidence to be weak, it could not have justified a finding that the applicant was guilty beyond reasonable doubt. Furthermore, if the view of the jury was that the defendant was unwittingly involved, then he would not have the necessary mens rea because he would not have knowledge of the blackmail.[10]Counsel relies upon the case of R v Howell (1940) Cr App R 27, at page 5. In that case the jury returned a verdict of dangerous driving saying:
"We find him guilty of dangerous driving owing to an error of judgment."
The judge had directed the jury that they could not find him guilty of dangerous driving if there had been a mere error of judgment, so the verdict appeared to be contradictory. The judge asked the jury to confirm whether they found him guilty of dangerous driving and the foreman said "yes".[11]The Court of Criminal Appeal, in a judgment given by Lord Hewitt LCJ concluded - perhaps somewhat surprisingly in the circumstances - that the verdict of the jury was free from ambiguity and what they intended to do was to acquit. Accordingly, the verdict was quashed.[12]Mr Offenbach submits that that this is an analogous case. Here words were said in the presence of other members of the jury which were inconsistent with the verdict of guilty. The confirmation by the jury of the guilty verdict in the written communication with the judge does not adequately allay the concerns that there may have been a miscarriage of justice.[13]We make the observation that it is by no means clear that the words spoken to the usher were made in the presence of the rest of the jury or so that the other members of the jury could hear them; and indeed the subsequent note from the foreman of the jury demonstrates that they were not in agreement with what she had said. We also observe that in the context in which her intervention occurred, it may well be that she was simply intending to indicate that the jury, or certainty she and possibly the other members of the jury, felt that there was a case for treating the defendant leniently. But whether her observations were intended to go to the reasoning of the jury when reaching their verdict, or were directed to the question of leniency is not at all clear.[14]The Crown submits that there is nothing unsafe in the verdict. Although this was a highly unusual situation, whatever uncertainties may have been created by the comments of the lady foreman, the matter had in fact been dealt with in a satisfactory manner by the judge. He had reiterated what the jury had to be sure of and again they returned with a unanimous verdict. There is no proper basis for casting doubt on the safety of the verdict.[15]It is a general principle derived from the case of Wooller 171 E.R. 589 and confirmed in such cases as Lalchan Nanan v The State Respondent [1986]A.C.860, in a judgment of the Privy Council on appeal from the Court of Appeal of Trinidad and Tobago, that evidence is not admissible to rebut the presumption that a verdict given in the sight and hearing of all the members of the jury without protest cannot be the subject of investigation.[16]There has been some modification of that principle in certain limited cases. Certainly the court can seek to elucidate the true meaning of a verdict where it is otherwise ambiguous or was mistakenly given. There have been circumstances where the jury has been allowed to change its verdict where it became clear very shortly after the verdict was given that what was said did not truly reflect the intention of the jury. So, for example, in R v Andrews (1986) 82 Cr App R 148, the defendant was charged with cruelty to a child, contrary to section 1 of the Children and Young Person's Act 1933. That offence is committed either by an assault or by wilful neglect. The judge informed the jury that if they convicted on the former basis they need only say "guilty" whereas if it was the latter they should say "guilty of lawful neglect". The jury found the defendant not guilty and the judge, in the presence of the jury, heard submissions relating to the sentence of a co-accused who had been convicted. About 10 minutes after the verdict had been delivered a note was sent to the judge indicating that the jury had intended to find the defendant guilty of wilful neglect but not of assault. The judge took an amended verdict to that effect.[17]It was submitted on appeal that he was wrong to do so. But this court, the Lord Chief Justice, Stuart-Smith J and Simon Brown J held that the judge had a discretion in the circumstances to allow the verdict to be corrected, even so as to alter the verdict to one of guilty, and the appeal on the point was dismissed.[18]The court referred to the earlier cases of Parkin 168 E.R.1179 and Vodden 169 E.R. 706. In the former a juryman answered a question from the judge in a way which led the judge to conclude that the defendant was not guilty, but shortly afterwards it transpired that the juryman was acting without the authority of the other jury members and the verdict was corrected. In Vodden the foreman either mistakenly said "not guilty" when the jury had in fact found the defendant to be guilty or at least was understood to have said that, and the judge allowed the verdict to be corrected. Simon Brown J, delivering the judgment of the court, said this:
"It seems to this court, both on those two authorities and as a matter of general principle, that the position in law is as follows: where the jury seeks to alter a verdict which has been pronounced by the foreman the judge has a discretion whether to allow the alteration to made. In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case and in particular the important considerations would be the length of time which have elapsed between the original verdict and the moment when the jury expressed their wish to alter it, the probable reason for the initial mistake and necessity to ensure that justice is done not only to the defendant but also to the prosecution."
He added that the fact that the defendant has been discharged from custody is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty.[19]A more recent case is a decision this R v Charnley [2007] 2 Cr App R(S) 33. This was a historic sex abuse case where the defendant had been acquitted of 19 out of 24 offences and convicted on five. The foreman said with respect to those five that the verdicts were unanimous. One juror, assisted by another, immediately thereafter notified the jury bailiff that the verdicts were not in fact unanimous. The judge was informed of these concerns but nevertheless discharged the jury and the verdict stood as delivered. The juror wrote a letter to the Crown Court manager expressing her concerns.[20]The Criminal Cases Review Commission was asked to carry out an investigation at the request of the court and discovered that not only were the verdicts not unanimous, but that there was not even a necessary majority in favour and so the court quashed the convictions. Sir Igor Judge P,as he then was, reviewed the authorities and concluded that whilst the basic principle is that the court cannot look behind apparently clear verdicts properly returned in open court, by admitting evidence that suggests that they may not truly reflect the actual decision of the jury, there are exceptional circumstances when that evidence could be admitted. Evidence of a mistaken verdict was one such circumstance. The court added that whilst it was a difficult situation for the judge, he had been wrong not to investigate the matter. The court said that the better course would have been to reconvene the jury to investigate whether the foreman's response accurately reflected the true state of mind of the jury.[21]It is to be noted that in these cases the court is concerned with the question whether the verdict given accords with the law or alternatively whether it properly represents the true view of the jury.[22]In this case the lady foreman clearly wished to raise an issue with the judge. It was plainly right for the judge to investigate what that issue might be in case it could cast doubt in some way on the safety of the verdict. We think with all due respect to the judge who was placed in a very difficult and unusual situation, that it would have been better if he had asked the foreman herself to raise the concerns before the court and in the presence of the other members of the jury or, alternatively, he might have sent the jury out with an instruction that any issues which the jury wished to raise should be put in writing to the judge. It was not satisfactory to have her comments relayed second-hand, perhaps not entirely accurately, by the usher.[23]In any event, even if the comments of this juror were intended to reflect in some sense on the way in which the jury reached its decision, they did not in any way disclose any defect in the verdict itself. At best her observations revealed her own understanding of what the jury's perception of the state of the evidence was. The highest it can be put is that it is suggested the jury may in fact have failed to understand the clear directions of the judge or alternatively simply to have ignored them. But it is not for the court to investigate the reasoning of the jury. The authorities suggest that this is inappropriate.[24]It seems to us that there is a difference between investigating whether the verdict truly represented the state of mind of the jury and whether the verdict was logically consistent with the jury's assessment of the evidence and its understanding of the directions from the judge. We therefore have reservations whether the judge was in fact right to re-open the verdict at all. But we appreciate that he may have been concerned that the jury could have been under some misconception as to what they had to decide and in those circumstances he chose to give them the opportunity again to consider the matter.[25]Some criticism has been made of the summary way in which he directed them afresh on what they had to be satisfied about. In our judgment, it was perfectly adequate. In so far as the observations of the jury raised any doubts about the reasoning of the jury, it was whether they could be sure in the light of weak evidence, and whether he was a knowing party to the blackmail in the light of an observation that he might have been an unwitting party. So the judge in our view focused on the critical issues. Having done so, the jury reconsidered the matter and confirmed the verdict of guilty. In those circumstances, we do not think there is any basis for concluding that the verdict is unsafe.[26]In the unusual circumstances of this case, we will grant leave to appeal but we then dismiss the appeal. We consider that the verdict was safe and the conviction stands.

LORD JUSTICE ELIAS: I think you were probably given a representation order in any event?

[28]MR OFFENBACH: I was, yes.

LORD JUSTICE ELIAS: Thank you very much indeed.