Garrett, R. v [2015] EWCA Crim 757

[2015] EWCA Crim 757Case No 201402817 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 24th April 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MRS JUSTICE McGOWAN DBE
SIR DAVID MADDISON
Between
R E G I N ACrownv
Between
ASTON GARRETT
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 7404 1424(Official Shorthand Writers to the Court)
Mr D Parvin appeared for ApplicantMr J Winship appeared for Crown

J U D G M E N

LORD JUSTICE DAVIS:

[1]This is an application (for which, in addition, an extension of time of some four months is needed) for leave to appeal against the conviction of the applicant of a count of possessing criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. The conviction was on 31st January 2014 after a trial before Miss Recorder Williams and a jury sitting at the Harrow Crown Court.[2]The essential ground of challenge is to the recorder's decision to permit the prosecution to admit details of the applicant's bad character in the form of certain previous convictions under the provisions of section 101(1)(f), read with section 105 of the Criminal Justice Act 2003; that is to say, as evidence to correct a false impression given by the applicant. In addition, and as an alternative ground, it is said that the recorder thereafter, having decided to permit such evidence to be adduced, failed to direct the jury adequately or sufficiently in her summing-up in this regard.[3]The applicant, who is aged 23, faced trial with two co-accused. One was a man called Peatling, who was acquitted; the other was a man called Blake, who was, as was the applicant, convicted.[4]We can state the facts shortly for present purposes. Dr Utidjian was a 86-year-old retired doctor. On 8th January 2008 he left his surgery premises in the afternoon when a white van pulled up and a man spoke to him. The man gave him a story about urgent building works or repair works being needed at his flat, and at all events he was persuaded to hand over the sum of £3,800 in cash as a deposit for these works. The doctor drew out that cash and people who were in the white van approached him. The driver asked him for the cash, which he handed over.[5]Shortly thereafter he received a further phone call from the man, calling himself "Alec", who now asked for a temporary loan of £6,200, saying that it was needed for the purpose of "straightening his books with the accountant". He was asked to obtain that money as soon as possible. The following day he was contacted again by the man called "Alec" and the sum of £6,200 was transferred on the request of this fraudster into the account of the co-accused Peatling.[6]Thereafter Dr Utidjian was contacted by someone calling himself "Mr Green", claiming to be a trading standards officer. Mr Green told Dr Utidjian that he had been the victim of a scam, as had been others, and in effect directed the doctor to transfer £20,000 into the bank account of the applicant, the details of which he had given, and £25,000 into the bank account of the co-accused Blake, the details of which were given; it being said that these payments would then release other victims of the scam. It was the prosecution case that the applicant knew or suspected that the sum of £20,000 placed into his account was criminal property.[7]There was an amount of dealings between Dr Utidjian and Mr Green, conducted over the telephone primarily. On 16th January Mr Green asked Dr Utidjian to attend a Halifax branch in Wembley to confirm that the payment had been received by the applicant. Dr Utidjian went to that Halifax bank branch accordingly. Later the same day Mr Green, as he styled himself, called the doctor and asked him to go to his own Barclays bank branch to confirm that the payment had been successful. The doctor did so and was told that the transaction had gone through. On his way home he then received a yet further call from "Mr Green", asking him to contact the person at the Haywards Heath Halifax branch. Yet later that day a man claiming to be "Aston Garrett" called the doctor and said he had received the £20,000.[8]The applicant's bank statement showed that the £20,000 was transferred into his account on 15th January 2013. He then withdrew £2,500 in cash from the Halifax branch in Haywards Heath on that date. The receipt for the transaction showed that a member of the bank staff had written "Buying a BMW. Advised to pay rest by CHAPS". In addition, the applicant made three cash withdrawals of £300 on that and the following days.[9]The bank expressed concern to the police, who requested that the account be frozen, which happened on 17th January. During the evening of 17th January the doctor was then contacted by the applicant, who said that he was suspicious of "Mr Green" and that he believed he was part of some sort of scam. The following day Mr Green called the doctor and said to him that Aston Garrett was an elderly man who had mental health problems who should be ignored.[10]When interviewed, the applicant made a prepared statement denying the offence and stating that he had been offered a job by a third party who did not have a bank account. He had allowed his account to be used to store money for a works project and at first had no idea that his account was being used for anything fraudulent. When he did realise it did not seem right, he had warned the doctor. He was not prepared to provide details of the third party out of fear for his safety and that of his family. He was to give evidence to like effect, saying that his suspicion that the money was criminal property only crystallised on the evening of 17th January, when he called the doctor.[11]It may be added that the defence of the co-accused was to the effect that he himself had received the £25,000, the sum of money he had been asked to receive in assistance to a friend.[12]Blake himself gave answers in interview but did not give evidence.[13]The applicant had a number of previous convictions. These included various convictions for violence when he was a minor. He also had a number of convictions for violence after reaching the age of 18, as well as convictions after he had reached the age of 18 for taking vehicles without consent and for theft, those convictions being in 2011. No application was made by the prosecution to adduce evidence of any of those convictions at the outset of the trial as propensity evidence. However, when he started to give evidence in chief, the applicant was asked questions about his background. Amongst other things, he was asked about when he left school, and he said 16, and then he explained that he had got certain GCSE qualifications. Then, as the transcript shows, there was this exchange:
"Q: What did you do when you finished school? A: Yeah, I planned to join the army. I was planning to go in as an officer but following that I did start getting into trouble. Q: Okay, what happened? A: I passed selection in May 23rd in Pirbright and then I started, like, getting into fights a lot. Q: Okay. So after the army -- A: Yeah. Q: What did you do after that? A: I just went to working. I worked in JD Sports in Crawley. I was a supervisor there. Q: Were you working in January 2013? A: No, I wasn't. Q: How long had you been unemployed? A: Maybe a couple of weeks/months."
The questioning of the applicant then continued.[14]The following morning of the trial, whilst the applicant was still in the course of giving evidence, the prosecution applied, in the absence of the jury, for his previous convictions to be admitted in evidence. It was said that the answers he had given had created a false impression, or at all events had been apt to do so; namely, saying that he had been in a number of respects in effect of sufficient character such as to think of going into the army, and only not pursuing that because of his then engaging in violence, and thereafter also, as was said, giving the impression that he had lived a responsible life. Further, it was said that to the extent that he had admitted being in trouble for violence when he was younger, that only gave a partial picture of his character; and overall these answers were apt to mislead.[15]There was extensive debate before the recorder. At one stage in the course of argument she suggested that it was "a little harsh" for the full antecedents to be admitted. Mr Parvin, appearing then as now for the applicant, submitted to the recorder that the applicant had not gone far enough in his answers to create either a false impression or to assert good character. All that he had done was explain why he had not gone into the army. The position was somewhat complicated by counsel for the co-accused Blake herself associating herself with the stance of the prosecution in this regard.[16]In the result, the recorder gave a somewhat equivocal ruling, if we may say so, in effect allowing certain questions as to the previous violence when the applicant was a minor to be put, but nothing more than that.[17]The evidence of the applicant then continued. In the course of cross-examination he said at one stage that he had been in a few cases with the police "where I've been a victim and they have not helped me". At one stage he said when being asked about the fights that he been involved in when he did not get into the army:
"Yeah, I've been involved in a few assaults and a few -- assault constables when I've been arrested. When I was younger I was quite violent"
. He then went on to say that he had considered that he had been stitched up by the police in the past and that he regarded himself in the present case as a victim of crime, just as in effect he had considered himself to be in the past.[18]Thereafter the prosecution renewed their application in the absence of the jury. At one stage the prosecution sought to invoke section 101(1)(b), although that ultimately was not pursued. But they maintained reliance on section 101(1)(f) on the ground that an impression apt to mislead had been given to the jury. Indeed, it was said that the impression had simply been reinforced by the further answers given by the applicant to the extent that he considered that he had been himself a victim of crime in the past.[19]After further lengthy argument, the recorder gave a ruling, without amplifying any further reasons, permitting the record of the applicant to be put, albeit not so far as his juvenile convictions were concerned. Accordingly, his five convictions for violence which had taken place after 2009 and his three offences of dishonesty, being vehicle taking and theft, were permitted to be put to him and were. He explained the details of those offences in re-examination.[20]Mr Parvin argues before us that it was wrong of the recorder to allow all of these convictions of the applicant when an adult be put before a jury. He maintained that no misleading impression had been given, and in any event that what was done went beyond what was needed to correct any misleading impression and had been unduly prejudicial to the defence.[21]The full effect of what happens in this context is not always readily to be gleaned simply from a study of the transcript. But, as we see it, the initial answers given by the applicant were apt to convey the impression that in effect the applicant had been a bit of a tearaway in terms of violence whilst a minor, thus spoiling his prospects of getting into the army, but thereafter he had in effect led a responsible life. Furthermore, the impression was also given that he had in the past been a victim of crime and stitched up by the police, which again did not sit at all well with the actuality of the totality of his antecedent history. Moreover, it is an ordinary general rule that a defendant is not necessarily always free to put in part only of his character: see Winfield 27 Cr App R 139. In our view, it was in all the circumstances open to the judge to conclude that the answers given had caused the gateway within section 101(1)(f) to be opened and to decide to admit the evidence of the convictions as she did. We therefore reject this proposed ground of appeal.[22]The second ground is as to the way in which the recorder summed-up on the point. The recorder in fact gave very full instruction to the jury on this particular aspect. She reviewed the previous history and explained to the jury that "you have to know the good things that he's done and the bad things that he's done. You have to know about him in the round". She then went on to stress that it was right that they had an accurate picture of the applicant. She went through the details of the convictions again and also pointed out that there were aspects in favour of the applicant. She said:
"[The applicant] admitted these offences before you when asked by both counsel, both prosecution counsel and his counsel, and this evidence was admitted by me to paint an accurate and total picture of the defendant in the round, both good and bad. I must warn you not to overly rely on the evidence of bad character, i.e. the fact that he has previous convictions. In particular you must not convict Aston Garrett, if you were to convict him, you must not convict him wholly or mainly on the evidence of bad character. In other words, just because he's got previous convictions it doesn't mean that he's guilty of this. It doesn't mean that just because he's got those previous convictions he is more likely to be guilty of this offence."
[23]So the recorder made it quite clear that the evidence was not in any way admissible as propensity evidence. The recorder went on to refer to the good aspects that could be derived from the character evidence and stressed that the question of the weight to be given to all this evidence was a matter for the jury.[24]Mr Parvin seeks to say that this was insufficient. Indeed, at one stage in his argument he sought to suggest that the recorder should positively have told the jury that the suggestion was that this was false and misleading evidence that had been given. In our view, the recorder in fact dealt with this in a very tactful and sensitive way by not in any way seeking to say than the prosecution had sought to suggest that this had been potentially misleading evidence given. The recorder stressed that the jury should not rely on this matter as propensity evidence; and overall, in our view, there can be no possible criticism of the way in which she dealt with this aspect of the matter given the particular circumstances of this case.[25]We should also say that we have stood back and viewed this case in the round. We are entirely satisfied that this conviction is safe. Accordingly, we refuse these applications.