Camara v Director of Public Prosecutions [2003] EWHC 2737 (Admin)

Case No C0/4402/2003[2003] EWHC 2737 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 16th October 2003
Strand
London WC2
B E F O R E:
LORD JUSTICE BROOKE
MR JUSTICE SILBER
Between
CAMARAAppellant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A POLSON (instructed by Usmani King, Leighton Buzzard) appeared for APPELLANTMR A MALIK (instructed by CPS Buckinghamshire) appeared for RESPONDENT
J U D G M E N TThursday, 16th October 2003
[1]MR JUSTICE SILBER: Paul Camara appeals by way of case stated against a conviction recorded against him on 11th November 2002 at the Milton Keynes Magistrates' Court of receiving stolen goods. He had been charged jointly with his brother, Dean Camara, that between 29th June 2002 and 30th June 2002 they received a substantial number of stolen goods, including cigarettes, tobacco, lighters and a DVD case.[2]The question for this court was originally stated to be:
"... whether the decision of this Court on 11th November 2002 that the Appellant was guilty of receiving stolen goods was wrong in law in that there was no evidence that the Appellant was in possession or in control of the stolen property in question and that in our finding he had the requisite mens rea was not based on evidence that could reasonably give rise to such a conclusion"
. The question therefore consisted of two parts, one of which was whether the respondent had failed to establish the actus reus of handling stolen goods. That point has not been pursued before us. The second question that was raised was whether the findings of fact were sufficient to establish the appellant had the requisite mens rea for the offence.[3]Today, Mr Alistair Polson, who appears for the appellant, has abandoned that question but instead he has raised a different issue, which is that one of the reasons that the justices used for deciding that the appellant had the necessary mens rea was his failure "to provide any evidence from any witnesses to give any other explanation which he could have done". It is said that that is a reversal of the burden of proof and, in consequence, the justices took into account an irrelevant factor in reaching their conclusion. Mr Malik for the respondent does not object to this change of stance and so we heard arguments on that basis.[4]In support of his submission Mr Polson relies on what is an assertion in the case stated, but before I explain it, it is necessary for me to state some of the facts which were found. The appellant was one of three men who had been observed by the police in Oldbrook Boulevard, Milton Keynes, on 30th June 2002 at 12.55. Of those three men, two were dragging a large, bulky object along the ground with a third man being a short distance ahead of them, apparently keeping a lookout. The justices found that on at least one occasion, that man had signalled to the other two men when a vehicle approached, but a time came when the men discarded the object but only retrieved it after the vehicle passed. The three men disappeared from view and the police car was moved, with two police officers getting out to pursue the men on foot. As one of the officers approached the alleyway, he recognised the brother of the appellant emerging from the alleyway a matter of seconds after the three men had disappeared into it. The brother of the appellant knew this officer and he acknowledged him, and he appeared to shake his head towards other people in the alleyway. The justices concluded that that was a signal to the other two men that the police officers were close by. Later the appellant and Matthew Murphy were discovered in the alleyway by one of the police officers, who recognised them both. The justices attached significance to, first, the physical proximity of the alleyway to Oldbrook Boulevard; second, the short period of time that had elapsed between the three men disappearing from view and the brother of the appellant emerging from the alleyway; and, finally, the signal given by him. In the light of those factors, the magistrates concluded that the appellant's brother had been with the appellant and Murphy in Oldbrook Boulevard and that all three were in joint possession or control of the bulky object.[5]The case stated also records that the police discovered the appellant standing close to a large, bulky duvet cover, which was found to contain the stolen goods described in the charge.[6]The magistrates therefore inferred that the appellant knew or must have believed that the duvet cover contained stolen goods from his actions, jointly with a companion, in attempting to conceal the knowledge of its contents. The magistrates therefore concluded that all three of them were jointly concerned in a dishonest deed with the stolen goods.[7]The passage in the case stated which is relied on by Mr Polson in support of his submission that there was a reverse burden of proof is in paragraph 8 of the case stated, which reads:
"We were of opinion that the Appellant was one of the three men involved as he was found standing in the alleyway by the duvet cover; his brother had signalled to him having just left the alleyway; he knew the contents of the duvet cover were stolen because by his actions he sought to conceal the fact from the police."
The next sentence is one on which Mr Polson places great reliance in support of his contention that there was erroneous reasoning because the case stated then says:
"... he failed to provide any evidence from any witnesses to give any other explanation when he could have done. Accordingly we found him guilty of the offence of receiving stolen property."
[8]Mr Malik, who appears for the respondent, contends that it is necessary to look at the matter in the round. He stresses the fact that there was substantial evidence which would have enabled the magistrates to reach the decision that they did relating to the appellant's guilt other than the failure of the appellant to call witnesses. Mr Malik points out that in his evidence to the magistrates the appellant explained that when he was arrested he was about three feet from the duvet cover which contained the alleged stolen goods, that was at about 1 am. The appellant had been at his girlfriend's home in Central Milton Keynes, leaving there at around 11 or 12 pm. As the appellant had nothing to do, he said that he went to Oldbrook to see a couple of friends who he met on the Boulevard and that he walked with them to Leadenhall as one of them said he had to go there to pick up something. The appellant said he did not consider what his friend meant but he went to Leadenhall, which is about 10 or 15 minutes away from the Boulevard by foot. He said that he could not remember what they talked about but when they got there one of the friends disappeared and he later came back with a duvet cover. The appellant said he had no idea what was in it. He was neither asked, nor was he told, what was in it. His evidence was that he did not have any involvement with it and they returned to Oldbrook by the same route. The appellant said that he was not making for cover in the bushes on Oldbrook when cars came past and that he did not know why his friends were doing that because there was no reason for them to hide. He said he had no concern over the passing car. The evidence of the appellant was that the only time he knew what was inside the duvet cover was after he got arrested because he could not see what was in it when it was being carried. He said that his brother was not one of the two people who had run off and he did not remember seeing Murphy that evening. His case was that he did not have possession or control of the duvet that evening.[9]In my view, the reasoning of the magistrates in this case fell into two distinct but interrelated parts. The first part of it was that the appellant was one of the men found standing in the alleyway, that his brother had signalled to him just after he left it and that he knew the contents of the duvet were stolen by his actions in seeking to conceal the fact from the police. It was open to the magistrates to conclude that the offence was proved on that basis. They then went on in the second part of their reasoning to say that the appellant had failed to provide any evidence from any witnesses to give any explanation when he could have done so. Therefore, that merely seems to me to be a point which was additional to and was only fortifying the conclusion that they had already reached which was that the appellant was guilty in the light of the other factors.[10]To my mind, the justices were entitled to infer guilty knowledge or belief from the appellant's actions and his evidence in the absence of any credible explanation, and that was the mental reasoning route that they took. Thus, notwithstanding the concise and clear submissions of Mr Polson, I, for my part, consider this appeal must be dismissed.

LORD JUSTICE BROOKE: I agree.

MR JUSTICE SILBER: Therefore the answer to the question posed by the magistrates is "no".

LORD JUSTICE BROOKE: I see that somebody gave an estimate of an hour and a half for this case. Does anybody have any idea who that was?

[14]MR MALIK: I said 30 minutes, I am almost right.

LORD JUSTICE BROOKE: It was 30 minutes on the face of the appellant's notice. Do we have the file in court?

[16]THE CLERK OF THE COURT: Yes, my Lord.

MR JUSTICE SILBER: Mr Malik said his view was between 30 minutes and an hour.

LORD JUSTICE BROOKE: Somehow the message came through of an hour and a half, but this may be just one of those things. Like so much in the business of the court, the answer to my question is lost in mystery.

[19]MR POLSON: I do not know if there is anything that needs to be said in relation to costs.

LORD JUSTICE BROOKE: Well, you have a defence order.

[21]MR POLSON: My Lord, yes.

LORD JUSTICE BROOKE: What is the position?

[23]MR POLSON: He is in custody.

LORD JUSTICE BROOKE: That is what I thought. I looked at the certificates of conviction. We will make no order.

[25]MR POLSON: Thank you very much.