Neutral Citation Number:
[2013] EWCA Crim 501
Case No:
201202725/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Wednesday, 13 March 2013
B e f o r e
:
LORD JUSTICE MOORE-BICK
MR JUSTICE WILKIE
MR JUSTICE LEGGATT
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Between :
R E G I N A
v
ANTONIO CORTES PLAZA
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Computer Aided Transcript of the Stenograph Notes of
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Miss N Bahra
appeared on behalf of the
Appellant
Mr M Seymour
appeared on behalf of the
Crown
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J U D G M E N T
1.
LORD JUSTICE MOORE-BICK: On 5 April 2012 in the Crown Court at Kingston upon Thames before His Honour Judge Birts QC, the appellant was convicted of conspiracy to supply a class A drug, in this case cocaine. On 9 May 2012 he was sentenced to 14 years' imprisonment with a direction under section 240 of the Criminal Justice Act that 208 days spent on remand should count towards that sentence.
2.
Two other accused, Johnny Delgado Cortezano and Humberto Caicedo-Ramirez, pleaded guilty on the same count and were each sentenced to eight years' imprisonment. A fourth accused, Adriana Maria Zabala-Zuniga, was acquitted.
3.
The appellant now appeals against conviction by leave of the single judge.
4.
The circumstances in which the appellant came to be arrested and later charged with the offence were these.
5.
On 10 October 2011 he arrived at London on a coach from Spain which had come via Paris. He was carrying a black bag with a shoulder strap. He travelled to Shepherds Bush and stayed at a flat, Flat 19 Oaklands Court, until he was arrested two days later. It was common ground that the flat was being used as a centre for processing cocaine. Indeed, that was the basis for the guilty pleas entered by the other accused. However, the appellant denied any knowledge of or involvement in that activity.
6.
It was the prosecution case that the appellant was involved in a conspiracy to import cocaine into this country and supply drugs from the flat. It invited the jury to infer that the appellant himself had either carried drugs or that he had acted as an escort for a woman courier with whom he had been seen in conversation at Victoria coach station and later identified on CCTV. It was said that his presence at the flat after his arrival showed that he had a continuing part in the conspiracy. In further support of its case the prosecution said that the account he had given of his entire journey from Spain via Paris to London was completely false.
7.
In addition, the prosecution sought and was granted leave to rely on the fact that on 10 December 2010 the appellant had been convicted in the District Court of Haarlem of importing almost 4 kg of cocaine (the equivalent of 1.44 kg at 100 per cent purity) into the Netherlands hidden in the lining of his suitcase.
8.
In ruling on the admissibility of the appellant's conviction the judge said that he had not found it a very easy point to decide, but he was satisfied that the evidence had powerful probative force and ought to be admitted. However, he said that he would direct the jury that whether it tended to establish a propensity on the part of the appellant to traffic in drugs was entirely a matter for them.
9.
The appellant's case was that he had come to this country to join his friends and to find work. He said he did not know that the flat was being used to process cocaine and he had had nothing to do with it. In short, his defence was one of innocent association.
10.
In due course the jury convicted the appellant.
11.
His grounds of appeal are that the judge was wrong to allow the prosecution to put in evidence his conviction in the Netherlands and that as a result his conviction is unsafe.
12.
The conviction in the Netherlands was adduced in evidence under section 101(1)(d) of the Criminal Justice Act 2003 which provides that evidence of a defendant's bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution. It was and is accepted in this case that the conviction was relevant in that sense because it was relevant to establish a propensity on the part of the appellant to become involved in the importation and distribution of cocaine and was also relevant to his defence of innocent association.
13.
However section 101(3) provides that the court must not admit evidence under subsection (1)(d) if it considers that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. That is the ground on which the appellant challenges his conviction. He says that although the evidence fell within the scope of section 101(1)(d), in a case where the whole of the prosecution case was based on inference the admission of his conviction was likely to have an overwhelmingly prejudicial effect on the jury and seriously undermine the fairness of the proceedings. Accordingly the judge should have refused to admit it.
14.
In order to evaluate that submission it is necessary to consider for a moment the other evidence before the jury. An officer of the Serious Organised Crime Agency, a Mr Brown, said that on 12 October 2011 he was one of a team of officers who had made a forcible entry into the flat. The only person present was Miss Zabala-Zuniga, the wife of the co-accused Cortezano. A thorough search of the flat was carried out and a quantity of drugs was found behind one of the kickboards in the kitchen. A large block of cocaine was also found hidden in the back of the airing cupboard. There was a hydraulic press used for compressing diluted cocaine erected in the hallway and a large container of cutting agent was found in one corner of the kitchen together with other equipment used for the production of drugs. In one of the bedrooms the officers found a recipe in Spanish, which, although it did not specifically mention cocaine, contained a full set of instructions for recovering cocaine from impregnated materials. No steps had apparently been taken to conceal from any visitor to the flat the purposes for which it was being used.
15.
Mr Michael Day, a forensic scientist, gave evidence that two rolls of wallpaper found at the flat, particularly in the form of lining paper, were suitable for use as a filter in the process of extracting cocaine from other materials. Within the flat there were various materials, acetone, ammonia, hydrochloric acid and others, together with written instructions necessary to undertake the process of the secondary extraction of cocaine from impregnated media.
16.
In addition to the surveillance evidence and the items found at the flat to which we have referred, the prosecution relied on documentary evidence which it said showed that the appellant's account of his journey to London was false.
17.
The documents showed that he had left Murcia on 4 October 2011 to travel by coach to Paris. The appellant claimed, however, that a friend by the name of Pedro had driven him to Barcelona where he had bought a ticket to Paris the next day. However, he said that after he had boarded the coach at Barcelona on 5 October he had received a text message from Pedro telling him of a job opportunity so he got off the coach and stayed in Barcelona. He said that on 8 October he had purchased a second ticket for Paris and travelled on to London by coach on a third ticket.
18.
The appellant was arrested on the afternoon of 12 October 2012. His hands were swabbed and his clothing was later examined but no trace of drugs or anything else of relevance was found. He was in possession of three coach tickets, a piece of paper which referred to "Flaco, Bombi and Hermano" with telephone numbers, a business card from the Sani Hotel and a scrap of paper with "261 Uxbridge Road, Shepherds Bush w12 9ds" on it, and the words "sent from my iPhone" on which someone else had written in manuscript "Hammersmit" (sic) and "Sani Hotel". The wording corresponded exactly both in form and content with the typed form of a text from Cortezano's mobile to a man known as Bombi. The address was that of the Sani Hotel which is located a few hundred metres from flat 19.
19.
A black suitcase was found in flat 19 which contained black clothing and a pair of child's roller skates which the appellant accepted belonged to him. The bag which he had been seen carrying when he arrived at Victoria coach station was not at the flat and was never recovered. Within hours of his arrival the appellant had been seen going to a department of Homebase with Delgado Cortezano and Caicedo-Ramirez where they bought rolls of wallpaper.
20.
In this case, unusually, but for what we accept were good reasons, the judge considered the application to adduce the evidence of the appellant's conviction at the beginning of the trial so that at that stage he had not heard the evidence called in the course of the trial. Nonetheless, the evidential context in which he considered the application does not appear to have been significantly wide of the mark.
21.
The existence of the conviction was dealt with by way of a formal admission. The appellant gave evidence to the jury explaining the circumstances in which he had come to be convicted, despite the fact that, as he said, he had not in fact committed the offence in question.
22.
When he dealt with the matter in his summing-up, the judge directed the jury that they should disregard the conviction altogether unless they were sure, having considered the appellant's explanation, that he had actually committed the offence with which he was charged. He also pointed out that the conviction represented only a small part of the evidence in the case and directed the jury not to place undue weight upon it. Finally, of course, he directed them not to convict the appellant simply because of his previous conviction.
23.
Miss Bahra, who has appeared on behalf the appellant, has provided us with substantial written skeleton arguments. She says that the prosecution case rested largely, if not entirely, on circumstantial evidence and submits that the admission of the evidence of the conviction in the Netherlands was overwhelmingly prejudicial because it had occurred such a short time before the matter with which he was then charged. She submits that once the evidence of that earlier conviction had been admitted the appellant had no choice but to seek to explain it. That made it necessary for him to give evidence and there was a real danger that the jury might convict him on the basis simply that they did not find his explanation credible. She also says that the judge was unable to mitigate sufficiently any prejudice to the appellant by the directions given in the course of summing up. In those circumstances she submits that to admit the evidence of the conviction for importing cocaine into the Netherlands fundamentally undermined the fairness of the trial.
24.
In his extensive written skeleton argument Mr Seymour for the prosecution really makes the simple submission that the judge was right to admit the evidence of the conviction in the Netherlands, or, at any rate, that it was within the scope of his discretion to do so and that he dealt with the matter properly in his summing-up.
25.
When giving his ruling the judge said that he had not found this a very easy point to decide, but it seems that he found it difficult only because he was conscious that the conviction was both powerful evidence of a propensity to engage in trafficking drugs, and therefore strongly supportive of the prosecution case, but also potentially prejudicial in the sense that the mere existence of a conviction might diminish the appellant in the eyes of the jury.
26.
The purpose of section 101(3) of the Criminal Justice Act 2003 is to ensure that evidence of bad character which may prejudice the defendant in the eyes of the jury is not admitted unless it has real probative value. As the judge said when giving his ruling, it has some similarity with section 78 of the Police and Criminal Evidence Act 1984. The purpose of the subsection is to ensure that evidence of bad character is not admitted unless it has sufficient probative value to outweigh any risk of prejudice to the defendant and does not affect the fundamental fairness of the proceedings. If the matter constituting bad character is of only slight or peripheral evidential significance, the prejudicial effect of admitting it may well be such as to render the proceedings unfair. But the more powerful the evidential significance, the less likely it will be that to admit it will render the proceedings unfair.
27.
It is very much a matter for the trial judge to decide on the basis of his own assessment of the case whether the admission of the particular evidence of bad character under consideration would render the proceedings unfair and this court will not interfere with his decision unless it is satisfied that it is clearly wrong. In the present case the judge thought that the evidence of the Dutch conviction had powerful probative force in tending to show that the appellant had a propensity to become involved in trafficking drugs and in rebutting the defence of innocent association. In our view he was right to take that view. Given the nature and circumstances of that earlier conviction, it is difficult to see how the jury could have been prejudiced against the appellant simply by virtue of the fact that he had been convicted of an offence of some kind. If, on the other hand, they considered that it was evidence of a propensity to become involved in supplying drugs, it is difficult to see how its admission can have rendered the proceedings unfair. It was for the appellant to decide whether to contest the facts of which the Dutch conviction was evidence. If, as was the case, he chose to do so, the jury was entitled to take what he said into account when assessing his overall credibility. Although some complaint about the extent of the cross-examination has been hinted at in counsel's skeleton argument, it does not form one of the grounds of appeal.
28.
The judge dealt with the Dutch conviction in an entirely appropriate manner in his summing-up. He made it clear to the jury that they had to be sure that the appellant had in fact committed the offence before they could take it into consideration at all. He also explained its potential relevance to the issues of innocent association and propensity while making it clear that whether the conviction did in fact assist on either of those questions was entirely a matter for them.
29.
In the circumstances we can see no grounds for saying that the admission of this evidence had an adverse effect on the fairness of the trial and we are satisfied that the conviction in this case is safe. The appeal must therefore be dismissed.