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Neutral Citation Number [2002] EWCA Crim 2208
Case No 200106801 W5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CARDIFF CROWN COURT
(HHJ JACOBS)

Royal Courts of Justice
Strand,
London, WC2A 2LL

15 October 2002

B e f o r e

LORD JUSTICE CLARKE
Mr JUSTICE PITCHFORD
and
JUDGE FABYAN EVANS
(Sitting as a Judge in the Court of Appeal Criminal Division)
____________________

Between
R
Respondent

- and -

Catherine Julia Williams
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No 020 7421 4040, Fax No 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Huw Davies QC (instructed by CPS South Wales) for the Respondent
Mr Jon Swain (instructed by Lloyd & Rowe) for the Appellant
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Mr Justice Pitchford

This is the judgment of the Court. On 8th November 2001 following a trial at Cardiff Crown Court before HHJ Jacobs, the Appellant was convicted by a jury of doing an act tending and intended to pervert the course of justice. On 30th November she was sentenced to 2 years imprisonment. She appeals against conviction with the leave of the single judge on the single ground that the judge permitted the prosecution to adduce inadmissible hearsay evidence.

The Court has been invited to consider whether the evidence was admissible as an exception to the rule against hearsay and, if so, whether the jury were properly directed as to their approach to assessment of the evidence.

In view of the way in which the prosecution justified the inclusion of the disputed evidence it is necessary to rehearse the facts in some detail.

The Appellant was charged alone with the common law substantive offence whose particulars were as follows

"Catherine Julia Williams on 23rd day of November 2000 with intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice in that during an interview under caution of her client Andrew Leslie Latte she asserted falsely that a representative of Latte Motors had told her before the commencement of the interview that a motor car being used by the said Andrew Leslie Latte at the time of his arrest and which belonged to the said Latte Motors had not been valet-serviced."

Andrew Leslie Latte assisted his father David to run a car dealership in Newport Road, Cardiff, called Latte Motors. Police believed that drug dealing was being organised by Andrew Latte at the premises. He was kept under surveillance. That surveillance included the fitting of covert listening equipment in a Portakabin used as an office at the garage premises. The equipment was positioned to pick up and record conversations taking place in the vicinity of the office telephone.

As a result of that surveillance the police learned on 22nd November 2000 that Andrew Latte may have formed the intention to carry out an assault upon an individual in Cefn Cribbwr near Bridgend in South Wales in order to enforce a debt. Latte and his co-accused, Mark Cole and Lloyd Edwards, took an Audi Estate motor car from the forecourt and used it to travel towards Bridgend. In the car were carried a stun gun under the driver's seat and knuckle dusters in the glove compartment.

That car had been purchased by Latte Motors on 15th November 2000. It was valeted preparatory to sale by an employee, Gareth (known as George) Day.

After a meeting at a public house in the Bridgend area Andrew Latte and his co-accused were intercepted by the police and arrested at 2pm on suspicion of being in possession of offensive weapons. Andrew Latte was at first taken to Bridgend police station. Although under arrest he had with him a mobile telephone from which at 2.21pm he managed to send a text message to the Appellant informing her of his arrest.

The Appellant was employed as a clerk by a firm of solicitors in Cardiff, Crowley & Company. She was not legally qualified but was accredited by her employer to attend police stations for the purpose of giving advice to clients in the course of their detention under the Police and Criminal Evidence Act 1984. The Appellant was on friendly terms with the Latte family having known them for several years.

At 2.35pm Andrew Latte sent a text message to his wife Joanne informing her of his arrest and expressing concern for the care of his co-accused, Mark Cole's, children. Calls were made by Joanne Latte to Latte Motors at 2.35pm and 2.38pm the inference being that she was passing to David Latte and George Day the news of the arrests.

At 2.44pm the Appellant sent a text message to Andrew Latte informing him that she was on her way to the police station.

At 2.55pm Joanne Latte telephoned Latte Motors. George Day received the call and his words were captured by the listening device. It is apparent from the transcript at page 60 of the jury bundle that each was seeking information from the other but without success.

Day learned that Andrew Latte had been arrested and that the police were in possession of the Audi car. This was of concern to him, first because he knew Andrew Latte had taken the stun gun with him and, second, because he had been given the use of the car. His front door keys were attached to the fob with the ignition keys in Andrew Latte's possession. During the conversation commencing at 2.55pm Day asked Joanne Latte to inform the Appellant that his keys were on the fob and that Latte Motors wanted the car back. He requested that Joanne Latte ask the Appellant to telephone him.

At 3.26pm and 3.31pm Andrew Latte sent two further text messages to the Appellant. She replied by text message at 3.33pm.

At 3.42pm Andrew Latte sent a text message to his wife.

At 3.48pm Joanne Latte telephoned Latte Motors and spoke to George Day. It is apparent from the transcript of Day's words at page 63-64 of the jury bundle that he was informed of the whereabouts of all three accused. Andrew Latte was on his way to Neath police station in a van.

He arrived at 4.07pm. At 4.15pm he told the custody officer that he had informed the Appellant of his arrest and that the Appellant would have passed that information to his wife. At 4.20pm the telephone was removed from his possession.

At 4.15pm the Appellant telephoned Latte Motors. She was engaged in conversation with someone for 15 minutes but the recording device did not pick up any part of it.

That evening the Appellant arrived at Bridgend police station to advise Andrew Latte's co-accused, Coles, and to attend his interview with the police. That interview commenced at 11.18pm. Coles' account was that he had gone with his co-accused to witness the signing of a document and that he had no idea that any weapons were in the car.

At 12.10am on 23rd November the Appellant telephoned Joanne Latte. The call lasted just over one minute. At this time, of course, neither had access by telephone or otherwise to Andrew Latte in Neath. All accused were detained overnight.

During the early morning George Day spoke on the telephone with both Joanne Latte and the Appellant. The subject of conversation was the likelihood that there would be no charge relating to drugs and that Andrew Latte had been watched by the police for two days.

At 8.21am the Appellant telephoned Joanne Latte. It is not clear where that call should be placed in time with the calls mentioned in paragraph 21.

At 10am on 23rd November the police conducted an interview with Lloyd Edwards. Present was the Appellant. His account of the journey to Bridgend was similar in its material respects to that of Coles the night before.

Andrew Latte was returned to Bridgend arriving at 11.35am. Shortly afterwards he was taken to the exercise yard where the Appellant was able to speak to him privately.

During her attendance at the co-accused's interviews the Appellant learned that an issue had arisen whether they knew of the presence of the offensive weapons in the Audi car. One factor relevant to that issue was the question whether the Audi had been valeted for sale by George Day at some stage before the accused set off for Bridgend. If the car had not been valeted that fact might support an assertion that the weapons had been left in the car, without their knowledge, by a previous owner or driver. The police had deliberately maintained the secrecy of the listening device in order to protect their investigation into more serious matters. Thus, the accused were unaware that the police had other evidence of Andrew Latte's intentions.

At about 11.58am on 23rd November, the Appellant was waiting for Andrew Latte's interview to commence when, in the presence of the custody officer, she telephoned George Day at the garage on her mobile telephone.

When George Day received the call the listening equipment was operating and his words to the Appellant were recorded. They were transcribed from disc and included in the jury bundle at page 72. He said this

'Latte Motors

Yes it is

He popped out, do you need that invoice do you?

Oh, sorry

Go on then

Right, right, umm

As far as I know, yes it would have been.

Umm, yeah, okey dokey.

Not a problem

1646 yeah

DC Saville

Any joy with my keys?

OK, thanks Cath, I'll do this straight away.'

In circumstances to which we shall need to return George Day explained this conversation in evidence. He maintained that the Appellant wanted to speak to David Latte who had popped out. He was aware, because he had been so instructed by David Latte, that the Appellant needed Latte Motors' pro forma invoice for the Audi car. David Latte must have learned of the Appellant's request earlier that morning or the night before. It was the prosecution case that the invoice was needed to demonstrate to the police that the car had been owned by Latte Motors for a short period of time. The Appellant went on to ask Day whether the car had been valeted pending sale-hence his reply, "As far as I know, yes it would". The Appellant replied to the effect, 'So it hasn't been valeted then' [our emphasis]. Day took that to mean that if he was asked by the police whether the car had been valeted he should reply that it had not.

Andrew Latte's interview under caution commenced at 12.02pm. He too maintained that he had travelled to Bridgend with his companions to organise the transfer of title to a property. The transaction took place in the Farmers public house. As they were leaving they were arrested. He knew nothing about the weapons found. He personally had taken the Audi in part exchange for a Rover car.

Approximately 12 minutes into the interview the following exchange took place

'DC Saville Do you know if this car has been valeted in any way or your staff or you say across the road?

Andrew Latte No I am not aware.

DC Saville No

Andrew Latte I wouldn't have thought it would have been but I'm certainly not aware.'

This reply was significant suggested the prosecution because Andrew Latte should have been aware that cars usually were valeted by George Day before they were sold. Immediately after Andrew Latte had given that reply the Appellant interrupted to say 'The call that I made in front of the custody officer earlier on, I rang the firm to ask if the car had been valeted and was told, 'No, it wasn't'.' At 12.33pm the interview was concluded.

It was the Appellant's intervention which formed the basis of the charge that she did an act intended to pervert the course of justice. The prosecution case was that the intervention was made dishonestly in the hope that if the police made enquiries at the garage George Day would respond as she had implicitly directed him.

The accused were released from police custody on bail and the surveillance operation continued. As a result Andrew Latte and others were charged with conspiracy between 1st January and 10th April 2001 to supply controlled drugs and with offences relating to the November journey to Bridgend. Andrew Latte pleaded guilty to counts acceptable to the prosecution, including possession of offensive weapons.

Enquiries into the Appellant's possible involvement in an attempt to pervert the course of justice commenced. On April 9th 2001 the police for the first time interviewed under caution and obtained a witness statement from George Day. He described his understanding of his telephone conversation with the Appellant. He said that although the Appellant had not specifically requested it he believed that she had wanted him to lie if the police asked him whether the car had been valeted. He maintained that he would not in fact have told anything but the truth.

When interviewed under caution on 17th April 2001 it was admitted by the Appellant that she had asked George Day whether the car had been valeted. She admitted that the transcribed reply must be accurate but that she must have misheard him. She said she could not understand why, if she had responded, 'So it hasn't been valeted then', George Day did not immediately correct her. She denied that any tone of voice of hers was intended to convey any message to him.

George Day was a reluctant witness at the Appellant's trial. On 27th September 2001 he composed a letter claiming that he had made his statement under pressure and wished to withdraw it. He did not wish to give evidence and perjure himself. A copy of the letter was delivered to prosecuting counsel's chambers the following day.

The prosecution sought at trial to rely not merely upon the transcript of George Day's words during the critical conversation with the Appellant but subsequent conversations he conducted in her absence with Joanne and David Latte. Preliminary submissions were made to the trial judge about the admissibility of the evidence on 15th October 2001.

The disputed material commenced with a telephone conversation between George Day and Joanne Latte at about 12.05pm, some 7 minutes after the critical conversation with the Appellant. The equipment, as we have said, recorded only words spoken by Day with pauses indicating that his correspondent was speaking. The telephone line itself was not bugged.

The jury heard the recording and read the transcript. Day was heard to say [p. 72-73 jury bundle]

'Hiya, it's only me, I've spoken to Cathy 'cos she's phoned here. [Pause]

I don’t know all she's on about

So you might know a bit more about it but she couldn’t really talk

She's on about asking me was the car valeted?

Now what's that got to do with it? [Pause]

Ah, right [Pause]

'Cos I'm going, I'm saying 'Of course it's valeted' [Pause]

And she's going, 'So it hasn’t been valeted, has it?' and I'm going 'Right, OK' [Pause] Do you know what I mean? [Pause]

Yeh, or as long as she's not going down the road, she thinks they're looking to ask me ask me questions about it [Pause]

Cos, I'm the one who's been using it [Pause]

I haven't got a f*****g clue

I just asked her about my car keys and I heard her speak to someone, she goes, 'Oh, right' [Pause]

Said can we get a fax of the invoice sent to, you know, the car's at some holding pound of theirs and she goes 'You might have to describe your keys to the f*****g officers'. I said 'Well hang on, my f*****g house keys are on them. Why would my house keys be on the key ring?' [Pause]

Obviously I've been using it [Pause]

I'm just thinking [Pause]

That's all I want is for them to f*****g pull me in and say 'You're the owner of the car, who's this, who's that and then they'll turn my f*****g house over. Maybe I'm just saying [Pause]

But they're still on about the car though [Pause]

Oh right, oh, I'm well off the f*****g plot I am [Pause]

Oh, they found the zapper in there did they? [Pause]

Oh, right, there we are then [Pause]

Oh f**k, right, I feel a lot better now, I can sleep easier [Pause]

Ah, there we are then [Pause, inaudible, pause]

That's why they couldn't find it on any one person then [Pause]

That's slightly better then, oh, there we are then, I'll leave you to it [Pause]

` Tara, Jo, Tara.'

About 17 minutes later, at 12.27pm, David Latte entered the cabin and a further conversation took place in which George Day related his conversation with the Appellant

'Invoice. She was quite weird on the phone

Obviously she want, she just wanted to make out she was phoning 'cos she asked, 'Has the car been valeted'.

I said, 'Well of course it has' and she goes, 'Oh, it hasn't then has it'.

Well, I didn't know anything about that, so it was pointless me saying, 'No, it hasn't when it has. So now I know to say if anyone asks that it hasn't. The car's in some compound somewhere, that's all she knew.'

Mr Alan Troy, counsel who represented the Appellant at trial, objected to the admission of this evidence. The prosecution intended to call George Day but did not intend to call Joanne or David Latte. The Appellant was not a participant in the later conversations. The words spoken to third parties in the Appellant's absence were thus hearsay. If the evidence was strictly admissible it should be excluded as unfairly prejudicial under s.78 Police & Criminal Evidence Act 1984.

Mr Huw Davies QC for the prosecution submitted as he submitted to us that the evidence was admissible for three reasons.

First, the prosecution case was that although the charge was a single substantive count against the Appellant the offence was committed in furtherance of a common design between herself, Andrew, Joanne and perhaps David Latte to pervert the course of justice and, thus, each was authorised by the others to advance that design. The conversations between George Day, Joanne Latte and David Latte took place in order to advance that design and bring it to fruition.

Second, Mr. Davies contended, the conversations took place contemporaneously with the interview during which the intervention took place and minutes after the disputed conversation between the Appellant and Day. They formed part of the res gestae and were explanatory of the real purpose of her call to George Day.

Third, since it was the A's case that she had misheard George Day's reply to her enquiry, and since she was contending that Day was lying about her own words and tone of voice, the evidence was admissible to rebut that defence.

The judge gave his ruling in these terms

"…I am against you on this one. It seems to me that Mr. Davies' fundamental point [is] that one can only evaluate the telephone call and the question of whether or not it is all an accident, mistake or misunderstanding against what was going on at the time. Whether or not it is a single plot or whether it is a number of people pursuing the same line independently, although having some sort of common source, I know not. That is a matter for the evidence but it does seem to me that the jury are entitled to consider the matter on one or the other basis. As far as concern about Day is concerned, again, it seems to me that all Day is saying is fundamentally an evaluation of his own position and what his future course of action must be. That must inevitably involve his taking certain views of what the defendant is about or might be about. Those are part and parcel of the course of events which Mr. Davies is entitled to rely upon. They are evidence of primary fact, overt acts and mechanism. The jury, it seems to me, would have to be warned that they are Day's opinion and they are part of the evaluation and they are not necessarily the jury's opinion. It also seems to me that there are, all these matters are two-edged swords, and when one looks at questions of prejudice in this case, the defendant might well be able to make the point that I have just made arising out of all this, 'Well, if I am supposed to be up to something that is completely dishonest it must have been very, very spontaneous because Day hadn't even got the plot, despite the fact that all these other telephone calls are going on'. So it does seem to me it has its pros and cons but I think they are all matters that the jury has to evaluate. So that would be my view on that matter and I give that ruling now because it may or may not, I know not, dictate what other applications are made."
We are not entirely clear which of Mr. Davies' alternative arguments the learned judge accepted. Mr. Davies acknowledges that his submissions to His Honour Judge Jacobs were not formulated with the same precision as they have been in argument before us.

Mr. Davies submitted to this Court that the significant feature of Day's 12.05pm conversation with Joanne Latte was his confusion as to what was required of him and its purpose, resolved by Joanne Latte's explanation. The plain inference, he submitted, was that Joanne Latte was already complicit with the Appellant in a common design to prepare the ground for a false defence by her husband. If that inference was correctly drawn, Joanne Latte enjoyed authority from the Appellant to advance the common design by recruiting Day to the conspiracy. In the course of Day's telephone conversation with Joanne Latte he, as yet innocent of complicity, did what the Appellant wished and expected him to do, namely report his conversation to another member of the family. Joanne Latte, exercising her authority, made the recruitment. Having been recruited, Day enjoyed the authority of both to relate that news to David Latte who was already complicit. Thus, submitted Mr. Davies, the transcripts at pages 72 and 73 of the jury bundle comprised direct evidence of the conspiracy in action

Mr. Swain who has represented the Appellant in the appeal makes the following submissions

(i) The prosecution should not have been permitted to adduce in evidence the acts and declarations of alleged co-conspirators to prove the Appellant's commission of a substantive offence for which she was charged alone. The act alleged in the Particulars of Offence was committed by the Appellant alone. The prosecution had elected to abandon a joint charge of conspiracy against the Appellant and Andrew Latte. The sole issue for the jury was the Appellant's intent. Mr. Swain sought support for this proposition from R. v. Gray and Others [1995] 2 Cr. App. R. 100.

(ii) Alternatively, there was no independent evidence of the Appellant's participation in a common design. Without it, there was no basis for the admission of the acts and declarations of others. Mr. Swain relied upon R. v. Jones, Williams and Barham [1997] 2 Cr. App. R. 119.

(iii) Alternatively, the evidence should have been excluded on the grounds of unfair prejudice under section 78 Police and Criminal Evidence Act 1984. The Appellant was not present at the time and had no opportunity at trial of testing by cross-examination the inference that Joanne Latte was implicated in the alleged conspiracy.

(iv) If, contrary to his first three submissions, the evidence was admissible, the trial judge failed adequately to explain to the jury the conditions upon which they could treat Day's narrative as evidence of the Appellant's guilt.

The acts and declarations of one conspirator are admissible against another if they take place in the performance of the common design. If a defendant, in order to commit the offence, acts in concert with another, jointly charged with the defendant or not, then the acts and declarations of the other in pursuit of the common design are admissible against the defendant. If the defendant acts by an agent to commit the offence the acts and declarations of the agent in pursuit of the defendant's design are admissible against him. However, acts and declarations of A are not admissible against B unless there is independent evidence admissible against B of B's complicity in the common design. Acts performed and declarations made by A otherwise than in pursuit of the common design are not admissible against B see R v Gray and Others [1995] 2 Cr. App. R. 100 and R v Jones, Williams and Barham [1997] 2 Cr. App. R. 119.

In both Gray and Barham this Court approved and placed reliance upon the reasoning in the written judgment of the High Court of Australia, over which Dixon C.J. presided, in Tripodi v. R. [1961] C.L.R. 1, refusing leave to appeal a decision of the Supreme Court of Victoria sitting as the Court of Criminal Appeal. The facts of Tripodi are instructive. The applicant was convicted of larceny on two counts drawn, as we understand it, against the applicant alone. There was direct evidence from a man called Tayler to the effect that he had been enlisted by a group of men of whom the applicant was one to assist in the sale of the first of two stolen cars, and to find a second car which would fit car registration papers already acquired. The prosecution was permitted to adduce the evidence of a motor tradesman to the effect that he was asked by a group of men to re-spray the first car a two-tone green notwithstanding the prosecution could not prove the applicant was present or within earshot. The stolen car was recovered nine weeks after its removal and the owner was able to identify it. It had been sprayed two-tone green and the engine had been changed.

At page 5 of the report the Court said

"All this evidence was let in whether the prisoner was within hearing or not on the ground that the prisoner and the others bringing the cars to be altered or painted were acting in concert in the theft and disposal of cars." [our emphasis]

Leave to appeal was refused. Having expressed the often-cited opinion that it is a mistake to think that the rule of admissibility was confined to charges of conspiracy, the Court in Tripodi proceeded at page 7

"It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert, confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose."

The evidence was found to be admissible notwithstanding that the offence of larceny must have been complete by the time the instruction was given to re-spray the vehicle. As the use of the words "and disposal" (see paragraph 51) demonstrates the common design upon which admissibility depended was wider than the substantive offence the evidence went to prove.

We need to examine the question whether it is the law of England and Wales that the actions and words of A, a party with B to a criminal design, are admissible against B to prove that B, acting alone in pursuit of the common design, committed a substantive offence.

The starting point is The Queen v. Blake and Tye (1844) 6 Q.B. 126. At his trial before Lord Denman C.J. in the absence of Tye who had been jointly charged, Blake was convicted upon an indictment alleging the Victorian equivalent of a conspiracy to defraud the Revenue. Admitted in evidence against Blake were not only his own bookkeeping entries as a landing waiter at the Custom House in the Port of London but also Tye's entries in his Day Book kept in the course of his business as an import agent. The object of the conspiracy was alleged to be the understatement of the value of imports so as to avoid the duty payable. Once the object of the conspiracy had been achieved Tye recorded on a counterfoil in his cheque book a payment by cheque to Blake of his share of the proceeds of the crime. Blake moved the Court of Queen's Bench for a retrial on the grounds that the documentary evidence emanating from Tye had not been admissible against him.

The Court was unanimous in the view that Tye's Day Book entries were admissible against Blake because, to use the words of Lord Denman at page 137

"The Day Book was evidence of something done in the course of the transaction, and was properly laid before the jury as a step in the proof of the conspiracy."

The Court found, however, that the cheque counterfoil was not admissible in evidence since it represented not proof of the conspiracy which was already complete but a statement by Tye after the event that he had divided the spoils with his co-accused. It stood therefore in the same position as a narrative description of past events which was inadmissible hearsay.

The Court's analysis of the nature and effect of the evidence was the subject of critical comment by Professor J.C. Smith in his penetrating article 'Proving Conspiracy' in the Criminal Law Review for 1996 at page 386. However, Blake remains authority for the proposition that a narrative statement or its equivalent by one co-conspirator after the completion of the common design alleged is not admissible.

In Reg. v. Charles and Others (1892) 17 Cox 499 at Staffordshire Spring Assizes, six defendants were individually charged in 16 separate substantive counts that each had in his possession an explosive substance contrary to section 4 Explosive Substances Act 1883. An 'explosive substance' was deemed to include, by section 9, 'any…apparatus, machine, implement, or materials used, or intended to be used or adapted for causing…any explosion'.

Each defendant had in his possession an apparently innocuous metal component of some sort, for example a lead bolt or a brass screw or a fuse. There was expert evidence that if the various articles were knowledgeably combined an explosive device could be created. It was contended on behalf of Charles that each accused was responsible only for the article found in his possession. Accordingly, there was, it was submitted, no case to answer.

Hawkins J. rejected the submission, remarking that the case was so clear he did not intend to state a case for the Court of Crown Cases Reserved. In summing up the case to the jury he included the following passage

"I have pointed out to you what each defendant has done, for the purpose of your forming your own judgment, as to whether or not they were connected in one common design to have these articles manufactured; and with a view to comply with that which I hold to be the law, that if they were connected in a common design to have these articles made, and for an unlawful purpose, that each member of the confederacy is responsible in respect of such articles as were in the possession of the others, connected, of course I mean, in the carrying out of their common design. Was that design a lawful one? Was it a possession under circumstances calculated to raise grave suspicion? Were these things which were found in the possession of the prisoners, the brass screw in the possession of Ditchfield, the lead bolt in the possession of Charles, the fuse in the possession of Cails, the brass casting, undoubtedly at one time in the possession of Charles, were these things first of all parts of a machine intended for the purpose of explosion?"

Thus the evidence of possession by each man of an article on the face of it innocuous was admissible against the other to prove a common design to manufacture an explosive device. Proof of the common design was evidence of intent for the purpose of sections 4 and 9 of the 1883 Act.

In common with the editors of the 15th edition of Phipson on Evidence at paragraph 29-10 we consider that Charles is early first instance support for the proposition advanced by Mr. Davies. Provided there is satisfactory evidence that the substantive offence charged is committed in pursuance of a common criminal design the acts and words of confederates in furtherance of the design are admissible against another not present.

This proposition was doubted by the Court of Appeal in Gray. At trial, prosecuting counsel relied upon a passage in the 44th edition of Archbold at page 3602

"The acts and declarations, also, of any one of the conspirators in furtherance of the common design, may be given in evidence against any other conspirator…and this principle applies when the charge is one of a crime committed in pursuance of a conspiracy, whether the indictment contains a count for conspiracy or not, and it makes no difference as to the admissibility of the act or declaration against the defendant whether the former be indicted or not, or tried or not."

Glidewell L.J., giving the judgment of the Court in Gray observed at page 124 that there was a similar passage in Phipson to which we have referred at paragraph 63.

For the purpose of testing the principle mentioned in Archbold and Phipson the Court reviewed 19th century authorities which did not, we observe, include Charles. Glidewell L.J., proceeded at page 125

"If we understand him correctly, Mr. Clark for the Crown submitted to the judge and submits to us, that

(i) if there is evidence that a group of persons have agreed to seek to achieve a common objective, and
(ii) individual members of the group are charged with substantive offences allegedly committed in pursuit of that objective, then
(iii) any evidence of acts done or statements made by one of the group which tends to prove furtherance of the agreement is admissible on the trial of any such substantive offence,
(iv) whether or not the particular defendant was present when the acts were done or the statements were made.
In our judgment the authorities come nowhere near supporting a principle of law so widely expressed."

The Court at pages 128-129 adopted an extensive passage of the written judgment in Tripodi which appeared to support counsel's proposition but distinguished the facts on the grounds that the applicant in that case was charged jointly with others in the substantive counts. With respect we are unable to find reference to a joint charge against the applicant in the report. Neither Mr. Davies nor Mr. Swain has sought to distinguish Tripodi on that ground. In any event, it seems to us that in order to establish the authority upon which admissibility in Tripodi depended, the prosecution was relying upon a common design wider than the offence of larceny, that is the ringing and resale of stolen motor cars for the benefit of the group.

The reasoning in Gray was considered by the Court in Murray and Others [1997] 2 Cr. App. R. 136. Murray was charged with two counts (counts 1 and 3) of conspiracy to possess heroin with intent to supply and one substantive count (count 2) of being concerned in an offer to supply heroin. Submissions on behalf of Murray were directed to the acts and statements of others in Murray's absence to prove count 2, the substantive count. The prosecution submitted that the acts and statements of others were admissible since they took place in pursuit of a common design to offer heroin for supply.

Counsel argued that the Court in Gray had narrowed the common law rules of admissibility concerning substantive offences charged against an individual. Otton L.J., giving the judgment of the Court, found most helpful a commentary upon Gray by the editors of the then current edition of Blackstone

"The Court of Appeal [in Gray] was inclined to the view that this stated the principle too widely; the acts and declarations of a person engaged in a joint enterprise and made in pursuance of that enterprise might be admissible against another, but only where the evidence shows the complicity of that other in a common offence or series of offences. As none of the offences was alleged to have been committed jointly, the rule did not apply. If, contrary to that view, the principle could be stated in wider form, the prosecution would have to make clear the limits of the alleged agreement in pursuit of which the specific offences were said to have been committed; as this had not been done the appeals were allowed. Thus it appears that the case for a wider principle could still be made. The rule permits the actions and declarations of one party, A, to be used in evidence against the other, B, and thus an exception to the general rule that B is not to be prejudiced by the acts or statements of another, and an exception to the hearsay rule in so far as it may involve reliance on A's statements as evidence of their truth. As an exception to the hearsay rule it defies classification…"

The Court in Murray accepted and adopted the principle that in order for the act or statement of A to be admissible against B, the rule requires (a) that the act or statement of A must be in furtherance of the common purpose; and (b) that independent evidence be adduced of the existence of the conspiracy and the involvement in it of B. Otton L.J having examined the evidence available to satisfy condition (b) continued at page 148

"Seen against that background, we are of the view that, having studied the judgment in Gray, Liggins and Others with the greatest of care, it is authority primarily for the proposition that the common law exception cannot be extended to cases where individual defendants are charged with a number of separate substantive offences and the terms of the common enterprise are not proved or are ill-defined. We do not accept Mr. McDonald's argument that dicta in the judgment of Glidewell L.J. does in fact narrow the common law exception."

Glidewell L.J. in Gray at page 130 made the following concluding observations upon prosecuting counsel's submissions

"We have sought to make it clear that in our judgment the principle set out in para. 25-10 of Phipson, where a conspiracy is not charged, applies to the commission by two or more people acting in concert of a substantive offence or a series of offences, and is limited to evidence which shows the involvement of each of the defendants in commission of the offence or offences. Even, however, if the principle is wider than that, it would be necessary for the prosecution to formulate, and for the judge and jury clearly to understand, the nature and limits of the agreement in pursuit of which the specific offences are alleged to have been committed."

We agree with and adopt the approach of the Court in Murray. We consider that the authorities to which we have referred demonstrate that acts and declarations by A in furtherance of a sufficiently defined common design are admissible to prove a substantive offence committed alone in pursuit of the same common design, by B.

Returning to the facts of the instant appeal, Mr. Davies submits that there was ample evidence of a common design between the Appellant and the Latte family to facilitate for Andrew Latte a false defence that he was unaware of the weapons placed in the Audi motor car. They would do that by giving false information to the police that the car had not been valeted and, consequently, not closely inspected before Andrew Latte's journey to Bridgend.

The evidence to support that submission comprised the juxtaposition of telephone calls and text messages passing between those involved together with the real evidence of Day's recruitment (see paragraph 47 above). Day's account had not, however, emerged to its full extent by the end of examination in chief.

In cross-examination Mr. Troy elicited from him his impression that the conversation with the Appellant was weird. There were voices in the background. It seemed as he said later to Joanne Latte that the Appellant could not really talk. He asked Joanne Latte why the Appellant had asked him whether the car had been valeted and she had explained. He agreed that it might have been as a result of what Joanne Latte said to him that he realised what he was supposed to say if asked by the police whether the car had been valeted.

Following Mr. Davies' application the witness was treated as hostile. No complaint is made about the application or its success. As a result the jury heard of the contents of the letter written on 27th September 2001 and of Day's statement to the police. Reluctantly he admitted that the statement was true and that he had no complaint about the way it was taken. He said it was true that the Appellant's voice changed when she sought confirmation that the car had not been valeted. He said it was true that he had telephoned Joanne Latte and clarified his conversation with the Appellant. He said he then understood the significance of the question.

During further questions from Mr. Davies and Mr. Troy George Day asserted that he honestly believed the Appellant had been asking him to lie although she had not explicitly said so. At the time he was 100% sure she did. He said his understanding of the reason for the question was complete when Joanne Latte explained its significance.

We accept Mr. Davies' submission (summarised at paragraphs 47 and 74 above) that there was reasonable circumstantial evidence to be left to the jury supporting an inference that there was a common design between at least Andrew Latte, Joanne Latte and the Appellant to prepare the ground for a false assertion by Andrew Latte that he knew nothing of the weapons. The justification for the prosecution's application to admit the evidence depended, in our view, upon the evidence of George Day to the effect that he was confused by his conversation with the Appellant. He thought he was being asked to tell lies to the police but the Appellant had not explicitly said so. He telephoned Joanne Latte who explained the significance of the enquiry, namely that the stun gun had been found concealed in the car but not in the possession of any one occupant-hence the importance of the question whether the car had been valeted. The jury could infer that fact from the pauses pregnant with meaning to be found in the transcript at pages 72 and 73. The jury was entitled to consider the transcript at this stage of their examination, not as evidence of the truth of the words spoken by him but as the narrative which provoked her allegedly complicit response. Provided that the jury accepted the inference of pre-existing complicity between the Joanne Latte and the Appellant, Day's conversations with Joanne and David Latte became evidence admissible against the Appellant of the common design in performance.

The circumstances which were capable of supporting the inference were

(i) The Appellant's attendance during the interviews of Cole and Edwards when lack of knowledge emerged as their defence;
(ii) The three communications between Joanne Latte and the Appellant between 6.36pm on 22nd November and 8.21pm on 23rd November 2000;
(iii) The juxtaposition between the Appellant's conference with Andrew Latte in the exercise yard at Bridgend police station and her call to the garage at 11.56 am;
(iv) Andrew Latte's assertion in interview that, contrary to George Day's practice, he did not believe the car had been valeted;
(v) The Appellant's intervention during Andrew Latte's interview;
(vi) Joanne Latte's response to George Day's confusion during their telephone conversation at 12.05pm.

It was, of course, open to the jury to find that they could not be sure of complicity between the Appellant and anyone else. They could conclude that it was reasonably possible Joanne Latte had acted independently of the Appellant, or that she acted innocently in explaining the Appellant's enquiry. They could conclude that David Latte was merely an observer of events. Nevertheless, the prosecution had, we accept, the evidential material, independent of the questioned hearsay, with which to make the assertion that the common design was present.

We do not consider the admission of the evidence would have prejudiced the Appellant unfairly provided the jury received appropriate legal directions. We can see no compelling reason for excluding the evidence under section 78 Police and Criminal Evidence Act 1984 once the conditions for admissibility were satisfied.

We are, however, conscious of the element of circularity which arises from the admission of the evidence. Day's narrative of the conversation was admissible only if Joanne Latte had the Appellant's authority to advance the common design. Yet inferential proof of Joanne Latte's complicity with the Appellant depended to a significant extent, as we find, upon the words spoken between them in the Appellant's absence. Furthermore, Day's words to Joanne Latte, while uttered, it was alleged, first innocently and then culpably, to advance the common design were for the most part a narrative of a conversation whose purpose and effect was hotly disputed by the absent Appellant. It was, it seems to us, of the utmost importance to the fairness of the trial that the jury received directions about the way in which they should approach the evidence and the dangers of convicting wholly or primarily upon the disputed hearsay.

It was the view of the Court in Jones, Williams and Barham that the nature of such directions should depend upon the particular facts of the case. The Court accepted the view of the High Court of Australia in Ahern v. R. (1988) A.L.R. 162 that special directions to the jury might in some circumstances be required.

In giving the judgment of the Court at page 132, Kennedy L.J. cited with approval a passage in the written judgment of the Court in Ahern at page 104

"It may be argued that there is a danger in not leaving the question of admissibility to the jury in that the jury may see the independent evidence of participation as unconvincing and yet act upon the acts and declarations of others outside the presence of the accused. Any such danger may, however, be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of any corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that it should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow."

The Court in Jones, Williams and Barham, at page 133-134, regarded an argument, on behalf of the prosecution, that, subject to a warning about hearsay evidence, the jury was concerned only with an evaluation of all the evidence once that evidence had been admitted, as falling short of that which was required to produce a safe result in all cases. The direction given by the trial judge in the case of Mr. Barham could not in the judgment of the Court be faulted since he explained the conditions for admissibility and reminded the jury of the extraneous circumstantial evidence. In view of the strength of the circumstantial evidence in Barham's case there was no danger that the jury would 'sweep away' the circumstantial evidence in favour of the hearsay.

In our view the quality of the hearsay evidence in this Appellant's case was such as to create an obvious danger that without guidance the jury would use previous consistent statements of fact and opinion by George Day as evidence of the critical conversation with the Appellant whether they were satisfied that a conspiracy existed or not.

Mr. Davies submits that the jury received ample directions concerning the purpose for which the evidence was admitted, the limited use they could make of it and the caution they should exercise in judging the credibility of Day. He submits that the jury could have been in no doubt they could convict the Appellant only if they were satisfied of her complicity in the alleged common design. We therefore turn to the summing up.

The trial judge gave the jury impeccable directions upon the matters which required proof. When he turned to intention he said [Summing Up, page 10B]

"The prosecution must prove that the defendant intended her act to have the tendency or possibility of perverting the course of justice. That is a question of inference from all the circumstances of the case, the prosecution case being that the intention is self evident. If, when the defendant intervened in that interview, she knew that Day had not confirmed that the car had not been valeted, then she was plainly telling a lie and the only inference to be drawn is that it was intended to try and get Latte off. I mean, that was the intention, obviously, to assist Latte. That is why she said it. So, the crucial issue is was she knowingly lying during that intervention or might it have been a genuine mistake. If she was knowingly lying, then quite clearly she was, as Mr. Troy said, dishonestly trying to get Latte off. If, on the other hand, she genuinely misheard, misunderstood, it was a genuine mistake, then all she was doing was just generally representing her client…….That is the crucial issue in the case and you have to look at that in the context of everything. That is why the prosecution and the defence have been arguing over all the other evidence in the case. Other actions are relied on by the prosecution, either direct actions such as Day's allegation about her tone of voice, or other conversations which you have got in the jury bundle which they have asked you to look at. Those are to negate the defence that this was a mistake. It is not one of those cases which you can simply take on the basis of a few words said at page 72 in the jury bundle. It is a case that has to be looked at in the context of what is going on because you have got to deal with the Crown's contention that the rest is relied upon to show that this is not a mistake because she is part of a plan to produce this defence. That is why we have sat here for so long looking at everything we have got in this jury bundle."

While the jury received an explanation that the prosecution had sought to disprove the defence of misunderstanding or mistake by seeking to prove the existence of a plan with others to deceive the police, they did not hear that their consideration of the truth of the narrative at pages 72 and 73 of the jury bundle was conditional upon the existence of such a plan established by reasonable evidence independent of it.

The learned judge directed the jury in explicit terms upon the need for caution when considering the evidence of a witness treated as hostile. He demonstrated to them that the contemporaneous narrative at pages 72 and 73 was consistent with the account he eventually gave in evidence. He did not, however, explain that the narrative did not thereby become evidence of the truth of its content.

In drawing the distinction between conversations in which the Appellant was party and those in which she was not, the learned judge said [Summing up, page 17E]

"But some of these conversations do not involve the defendant at all. They are put before you as the prosecution say they show how the plot was developing. They say you can see how the defendant's actions and words fit in. That is, so they say, if you analyse the other conversations in the cabin. The inference you are asked to draw is that the information the speakers had could only have come from the defendant who would be the person who would know the state of play in relation to all three men in custody, and that Joanne Latte must have been briefed by the defendant and only the defendant by the time she spoke to Day. They say that shows the defendant's involvement in the plan. You are entitled to draw such inferences in evaluating the these matters but bear in mind that the defendant was not present and you do not have the other side of the conversation on the phone."

A similar direction was given when the summing up resumed the following day [Transcript page 23D].

The learned judge analysed for the jury in some detail the progression of telephone calls and other evidence upon which the prosecution relied to prove the common design. When he came to the material at pages 72 and 73 of the jury bundle [Summing up, page 33-35] he read the narrative extracts which explained Day's state of mind and belief. He demonstrated how Joanne Latte's explanation made Day feel better and, by reference to his conversation with David Latte, how he then knew what to say about the car if asked.

In none of these passages, however, was the jury warned about the danger of convicting upon hearsay alone.

At pages 17C and 39C of the transcript of the summing up, the learned judge, without further comment or correction, reminded the jury of a submission made by Mr. Davies to the effect that there was an abundance of evidence against the Appellant upon which they could convict without the evidence of Day. It seems to us that this submission cannot have been left to the jury without also leaving them with the erroneous impression that they could use Day's words at pages 72 and 73 to complete the missing part of the 11.58am telephone conversation between Day and the Appellant and thus use it as direct evidence of guilt. For the reasons we have given we consider that the evidence was not admissible to prove the Appellant's intent unless there existed satisfactory independent evidence of the Appellant's complicity in a pre-existing common design.

The jury retired at 11.11am on 8th November. After 2 hours 49 minutes of retirement they asked to hear the covert recordings which took place at 11.58, 12.05 and 12.27, that is to say the call from the Appellant to Day, Day's call to Joanne Latte and Day's conversation with David Latte. They retired again at 2.10pm and returned at 2.19pm with a unanimous verdict.

We recognise that the exercise of giving directions upon the admissibility of the acts and statements of co-conspirators can be a difficult one when, as here, the statements comprised the transmission of narrative information between the alleged conspirators and, on the prosecution case, in consequence, instructions by one to another. The position was further complicated here by the prosecution's ability to cross-examine its own witness upon the hearsay material. In the absence of such directions, however, a real possibility existed that a jury treated narrative hearsay as stand-alone evidence of guilt whether there was a common design involving the defendant or not.

The narrative account, without more, merely begged what the learned judge described, correctly in our view, as the central issue in the trial, namely whether Day properly interpreted the Appellant's enquiry or not.

In our judgment the summing up should have contained an explanation that Day's narrative to Joanne and David Latte could only be used against the Appellant if the jury found satisfactory independent evidence that she was a conspirator with the others in a common design to pervert the course of justice. They should have been warned that the case depended primarily if not wholly upon the honesty and reliability of Day's oral evidence. They should have received a direction that they should not convict solely or mainly upon Day's narrative account after the event to Joanne and David Latte.

Mr. Davies endeavoured to persuade us that Day's remarks to others were, in the alternative, res gestae explanatory of contemporaneous events. Day's remarks could not, in our view, be admitted to explain the actions of the Appellant; only the Appellant's explanation would suffice. In the circumstances of this case we do not consider that Day's remarks were a spontaneous reaction to the event upon which he was commenting. They were made on reflection and were narrative of a past albeit recent event. Furthermore, the possibility of contemporaneous misinterpretation by Day of the meaning of his conversation with the Appellant was at the heart of the case. Day's evidence at trial of his understanding of the Appellant's enquiry was of course admissible to prove the content and effect of the enquiry. However, while his narrative of that conversation to others might have been admissible to prove his own contemporaneous state of mind had that been in issue, his state of mind was not relevant to the offence charged.

Finally, Mr. Davies submitted that the disputed evidence was admissible to disprove the Appellant's case that Day was lying in his assertion that she was conveying a covert message to him. We disagree. In this context the words spoken amounted merely to a previous consistent statement by the witness and, as such, were not admissible.

It is not possible in the circumstances to say that the jury's verdict was safe and the conviction must be quashed.

- - - - - - - - - - - - -

LORD JUSTICE CLARKE For the reasons set out in a written judgment of the court which has been provided to the parties and is available to others, this appeal will be allowed and the conviction quashed. There is nothing further in Williams?

MISS HAUGHEY My Lord, no. My Lord, may I extend the apologies of Mr Swain, unfortunately he is part heard in a trial.

LORD JUSTICE CLARKE That is quite all right.

MISS HAUGHEY There is one matter that I submit I should raise. Has your Lordship made any decision as to whether this matter should be retried or not? The young lady in question, Miss Williams, has served one year of the two year sentence. The defence would say that it would not be appropriate for this matter to be retried.

LORD JUSTICE CLARKE So far nobody has suggested that. Is there anybody here for the Crown?

MR DAVIES My Lord, Mr Davies. Could I also apologise that Mr Davies QC is unable to attend? He had to attend to other matters.

LORD JUSTICE CLARKE Yes. The Crown is not making an application for a retrial, is it?

MR DAVIES It is my understanding that the Crown would seek to have a retrial in this matter, having spoken to Mr Davies yesterday evening. The Crown's submission is that the interests of justice would be served by a retrial in this case. There is reasonable evidence to be left to the jury. The nature of the offence itself involved an alleged substantial breach of trust such that the question of guilt warrants a definitive answer in this case.

LORD JUSTICE CLARKE I see the force of that. But the position is that Miss Williams has served the amount of the sentence that she would ordinarily serve before release. That is right, is it not?

MR DAVIES Yes, my Lord, that is approximately right.

LORD JUSTICE CLARKE Right. We will just retire to consider that.

(The court adjourned for a short time.)
LORD JUSTICE CLARKE We have considered whether it would be right in the public interest to order a retrial. We entirely see the force of the Crown's application for a retrial. We agree that there was reasonable evidence to be left to the jury and that in some respects the case appeared a strong one. However, the position is that the appellant has served a year of the two year sentence and has been released in the ordinary course of events. We have decided that, in all the circumstances, the public interest does not require a retrial.

MISS HAUGHEY I am most grateful, my Lord.

Link http//www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2002/2208.html

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Posted : 21/08/2009 4:35 pm
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