Fitzgerald, R v [2017] EWCA Crim 556

Case No 201602789 C4[2017] EWCA Crim 556
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 28 March 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE KINCH QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
KEVIN SHANE FITZGERALD
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N T
[1]MR JUSTICE HOLROYDE: This is a renewed application for leave to appeal against the Applicants’ conviction for an offence of attempted robbery, following refusal by the single judge.[2]On 15 December 2015, a car which had been hired by Mr Dale Byrne was involved in a collision. Mr Byrne was not in the car at the time. He told the police, and in due course gave evidence at trial, that the car had been taken without his consent, and he passed on to the police a suggestion that one Lee Venning may have been using the car at the time of the collision.[3]The applicant's case at trial was that Lee Venning had indeed been using the car at that time, but that the car had not been taken without Mr Byrne's consent. On the contrary, the applicant's case was that the car had been loaned in return for payment to the applicant and his friend Danny Venning, the brother of Lee Venning, and that later Lee Venning had used it. Thus, there were two different versions of how the car had come into the hands of Lee Venning.[4]On 8 December 2015, the applicant and Danny Venning went to Mr Byrne's flat. Mr Byrne's partner and their three children were asleep upstairs. Again there were two very different versions of what happened. Mr Byrne said that he was accused of being a grass, which he assumed was because he had given Lee Venning's name to the police; that Danny Venning and the applicant demanded money from him; and that when Mr Byrne refused, the applicant became very aggressive. Mr Byrne's account was that the applicant told Danny Venning to fetch a knife from the kitchen and then punched Mr Byrne a number of times. Mr Byrne further said that Danny Venning went upstairs, woke Mr Byrne's partner and ordered her downstairs, where she witnessed her partner being threatened and assaulted. He said the incident ended with the applicant threatening to return the next morning with a gun if he did not get his money. Within minutes of the departure of the applicant and Danny Venning, Mr Byrne's partner made a 999 call and reported what had just happened.[5]The applicant's case, in stark contrast, was that he had only gone to Mr Byrne's house in order to collect some items which had he inadvertently left in the car. The applicant said that there had been no threatening, no demand for money and no violence. Moreover, he said, no-one went upstairs to wake Mr Byrne's partner, and she was not present with the men downstairs at any time.[6]Thus, the jury at trial heard evidence of conflicting and mutually irreconcilable versions of events. Mr Byrne and his partner gave evidence for the prosecution. The applicant gave evidence in his own defence. Danny Venning, who was jointly charged, did not give evidence.[7]Following the applicant's evidence, the prosecution applied to adduce evidence of bad character in relation to some of the applicant's previous convictions. The application was made under section 101(1)(g) of the Criminal Justice Act 2003 on the ground that the applicant had made an attack on another person's character. He had done so in two respects: his evidence was that Mr Byrne and his partner had conspired to tell lies about the events of 8 December 2015; and that Mr Byrne had previously lied to the police about the events of 5 December.[8]The application was opposed by the defendant but was granted by Miss Recorder Midgley. Thereafter, sensible agreement was reached between counsel, with the result that the relevant convictions were put before the jury in the form of agreed facts. Thus, the jury heard brief evidence of convictions of the applicant dating back to 2008 for offences of assault, disorder and affray.[9]In her summing-up, the learned recorder carefully directed the jury as to the limited purpose for which they could use that evidence, emphasising that it was not capable of showing any propensity on the part of the applicant to commit robbery. No complaint is made about that part of the summing-up.[10]The sole ground of appeal against the conviction of attempted robbery relates to the decision of the recorder to admit the evidence of bad character. The written grounds of appeal argue that the evidence should not have been admitted because it did not fulfil the requirements of section 101(1)(g). Alternatively, even if it were admissible in principle, it should have been excluded by the recorder under section 101(3) of the 2003 Act on the grounds that its admission would have such an adverse effect on the fairness of the proceedings that the court should not admit it.[11]Section 106 of the Act contains the definition for this purpose of "attack on another person's character". The statutory definition is that such evidence means:
" ... evidence to the effect that the other person— (a)has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or (b)has behaved, or is disposed to behave, in a reprehensible way ... "
[12]The written grounds of appeal contended that in the circumstances of this case the applicant was doing no more than stating his defence and that an emphatic denial should not have been treated as an imputation on the character of a prosecution witness.[13]Before the recorder, reliance had been placed on the decision of the House of Lords in Selvey v DPP [1970] AC 304. But, as this court said in the case of R v Pedley [2014] EWCA Crim 848 at paragraph 44:
"It is one thing for the applicant to deny that he had acted as alleged, but it is another thing entirely to suggest that the whole allegation against him is a deliberate and elaborate concoction on the part of the principal witness."
[14]Applying that principle to the circumstances of this case, the position is, in our judgment, clear. However it was expressed, the effect of the defence case was that Mr Byrne was being accused of attempting to pervert the course of justice by making a false allegation of crime in relation to the events of 5 December 2015, and he and his partner were being accused of conspiring to pervert the course of justice by making most serious allegations about the conduct of the applicant and Danny Venning on 8 December. The learned recorder put her decisions primarily on the basis of an allegation of reprehensible behaviour but it seems to us she could equally well have treated the true effect of the defence case as being an allegation of crime.[15]In those circumstances, we have no doubt that the learned recorder was entitled to admit the evidence of the previous convictions of the applicant.[16]A point was made in the written grounds that the nature of the defence had been indicated in the defence statement but that no application had been made by the prosecution until after the applicant had given evidence. In the normal way, we would expect prosecuting counsel to give an informal warning to defence counsel that if evidence were to be given, or if a particular line of cross-examination were to be adopted, there would be a risk of an application to adduce bad character evidence. Whether or not that was done in this case this court does not know. But even if it was not, the fact that no such warning had been given does not entitle the applicant thereafter to run his case with impunity.[17]As to the challenge to the recorder's decision not to exclude the evidence, this was a matter for her discretion and there is, in our judgment, no arguable basis on which she could be said to have erred in the exercise of that discretion. The application was limited to the more recent of the applicant's convictions. Any potential prejudice could be, and in due course was, sufficiently countered by the appropriate directions which the recorder gave.[18]We therefore reach the same conclusion as did the learned single judge when refusing leave on the papers, namely that there is no arguable basis for saying that this conviction is unsafe.[19]The renewed application for leave accordingly fails and is refused.