*221 R. v Sean Michael Lydon Court of Appeal 19 December 1986 (1987) 85 Cr. App. R.

221 (Lord Justice Woolf, Mr. Justice Tucker and Mr. Justice Potts): December 12, 19, 1986 EvidenceIdentificationHearsayWhether Evidence More Prejudicial Than Probative. JuryConversation Between Witness and Jury MembersWhether Prejudicial. A car was stolen in Neasden, London, and driven to Oxfordshire where its two occupants robbed a post office. The car was later found abandoned on the Nettlebed road. The appellant and a co-accused were charged with taking a conveyance without authority and robbery. The co-accused pleaded guilty. The only issue at the appellant's trial was whether the appellant was the second man. There was substantial identification evidence incriminating the appellant by a customer who had been in the post office at the time of the robbery, by a part-time assistant who worked there, and by a taxi driver who had driven two men from Nettlebed to Neasden and whose description of one of the men fitted the co-accused and who identified the appellant on an identification parade. However in relation to each identification there were points which could be made to undermine the identification. A description was also given by two women who were outside the post office, one of whom took the number of the car used in the robbery which was later found abandoned on the Nettlebed road. Further, there was evidence, which the recorder allowed to go before the jury, as to the discovery of a gun on the grass verge 12 inches from the edge of the road which would have been used by the getaway car when travelling towards Nettlebed and about a mile from where the robbery took place. The gun was in four pieces, and immediately in the vicinity was found two pieces of rolled up paper on which was written Sean rules and Sean rules 85. On the surface of the broken gun barrel was a smear of blue ink which, according to forensic evidence was similar to the dye composition on the pieces of paper, so that the ink could have originated from the same pen. However the gun was black and silver and the only witness at the scene to give a description said it was dark brown. The appellant's defence was an alibi. He was convicted and appealed on the ground that the evidence about the gun was hearsay and more prejudicial than probative; further, the question arose whether the jury could be satisfied that the identification evidence was accurate. In addition it was complained that during the trial, and after it had been adjourned because of the absence of a witness, a police prosecution witness was seen talking to three jurors at a bus *222 stop. The officer was referred to this during his evidence and averred that he was only engaging in pleasantries. Held, dismissing the appeal, that

(1) the reference to Sean could be regarded as no more than a statement of fact involving no assertion as to the truth of the documents; the real question being whether the jury could be satisfied that the identification evidence was accurate: that was supported by the fact that the appellant came from Neasden, and it was from Neasden that the car was taken that was used in the robbery and it was to Neasden that the taxi driver took the man whom he identified as the appellant; that if the jury were satisfied that the gun was used in the robbery and that the pieces of paper were linked to the gun, then the reference to Sean, the appellant's name, on the paper could be a further fact which would fit in with the appellant being the person who committed the robbery, i.e. be circumstantial evidence which would help to satisfy the jury that the Crown's case was correct. Thus the recorder was entitled to rule as he did that the document did not contravene the hearsay rule since the evidence was not unduly prejudicial. Dictum of Cox J. in Romeo (1982) 30 S.A.S.R. 243, 262 applied. Rice (1963) 47 Cr.App.R. 79, [1963] 1 Q.B. 857 considered. (2) The exchange of pleasantries between a witness and members of the jury gave rise to no possible injustice or prejudice in the conduct of the case, although it would have been wiser for the witness not to have spoken to the jurors at all. [For evidence on identification, see Archbold (42nd ed.), paras. 14-1 et seq.] Appeal against conviction. On March 20, 1986, in the Crown Court at Oxford (Mr. Recorder Desmond Fennell Q.C.) the appellant was convicted on indictment of taking a conveyance without authority (count 1) and robbery (count 2). He was sentenced to 12 months' imprisonment on count 1, his licence endorsed with eight penalty points, and to seven years' imprisonment concurrent on count 2. In respect of a breach of a conditional discharge imposed by Willesden Magistrates' Court on January 28, 1985, for possessing an offensive weapon, he was sentenced to six months' imprisonment consecutive (seven and a half years' imprisonment in all). The facts appear in the judgment. The principal ground of appeal was on the admissibility of identification evidence. Further, whether the jury should have been discharged owing to the conduct of a prosecution witness. The appeal was argued on December 11, 1986. H. Grunwald (assigned by the Registrar of Criminal Appeals) for the appellant. A. Redgrave for the Crown. Cur. adv. vult. December 19.

WOOLF L.J. read the judgment of the Court. After a trial lasting three days at the Crown Court in Oxford, the appellant was found guilty of one offence of taking a conveyance without authority, in respect of which he was sentenced to 12 months' imprisonment, and one offence of robbery, in respect of which he was sentenced to seven years' imprisonment concurrent. In addition the appellant, having admitted being in breach of a conditional discharge, was sentenced to six months' imprisonment consecutive to the *223 previous sentences, making the total sentence one of seven and a half years' imprisonment. He now appeals against conviction by leave of the single judge. The robbery took place on July 31, 1985, and was of a post office at Crowmarsh Gifford in Oxfordshire. The sum taken was 1,700. The robbery was carried out by two men, one of whom was the appellant's co-accused Fernandez who pleaded guilty. The only issue at the trial was whether or not the appellant was the second man. The other count related to the car used for the robbery, which was taken from the Neasden area of London on the same morning as the robbery. There was substantial identification evidence incriminating the appellant by a customer who had been in the post office at the time of the robbery, by a part-time assistant who was working in the post office, and by the taxi driver who drove two men from a pub at Nettlebed to Neasden. His description of one of the men fitted the description of the appellant's co-accused, and he identified the appellant on an identification parade. However in relation to each identification there were points which could be made to undermine the identification. A description was also given by two women who were outside the post office, one of whom took the number of the car used for the robbery which was later found abandoned on the Nettlebed road. The principal ground of appeal relates to the evidence which was put before the jury notwithstanding an objection made by Mr. Grunwald on behalf of the appellant, that the evidence was hearsay and in any event more prejudicial than it was probative. The evidence was as to the discovery of a gun on the grass verge, 12 inches from the edge of the road which would have been used by the getaway car when travelling towards Nettlebed and about a mile from where the robbery took place. The gun was in four pieces. Immediately in the vicinity of it was found two pieces of rolled up paper which had written upon them Sean rules and Sean rules 85. The gun had broken into four pieces. On the surface of the broken gun barrel there was a heavy smear of blue ink on the inside which, according to the forensic evidence, was similar in appearance and dye composition to that on the pieces of paper, so that the ink could have originated from the same pen. However the gun was black and silver, whereas Mr. Ham, who only saw part of the barrel of the gun and who was the only witness at the scene to give a description, said that it was dark brown in colour and had a makeshift look about it.

The appellant gave evidence on his own behalf, and it was his case, supported by witnesses, that at the time of the offence he was in Neasden. Mr. Grunwald on behalf of the appellant contended that, apart from the writing on the paper referring to Sean, there was nothing to connect the accused with the gun and he submitted that the references to Sean were hearsay and in any event, bearing in mind that there are a great many people who are called Sean, the evidence was highly prejudicial. He accepted that the decision of this Court in Rice (1963) 47 Cr.App.R. 79, [1963] 1 Q.B. 857 was some support for the ruling of the learned recorder, since in that case this Court upheld the use of an air ticket to establish that Rice flew from London to Manchester on a particular day. However he submitted that that decision had been overruled by implication by the House of Lords in Myers v. Director of Public Prosecutions (1964) 48 Cr.App.R. 348, [1965] A.C. 1001.*224 He drew the Court's attention to a decision of the Supreme Court of Australia, Romeo (1982) 30 S.A.S.R. 243, in which Cox J. examined in detail the English and Australian decisions, and expressed the view that the decision of this Court was inconsistent with the reasoning of the majority of the House of Lords in Myers v. D.P.P. (supra). In Rice Winn J., in giving the judgment of this Court at p.90 and p.872 respectively, drew a distinction between the relevance and probative significance of the ticket as distinct from its contents, since what it might say could only be hearsay, and Cox J. recognised this distinction in his judgment (at p.262). He said: Sometimes it is possible to avoid the hearsay rule by showing that a statement made in a document is being used as an original and independent factfor instance, that a person who made use of the document had certain information in his possession at a relevant timeand not as evidence of the facts stated. It is always important, therefore, whenever an objection is taken on hearsay grounds, to ascertain for precisely what purpose the evidence is being tendered. It may be hearsay for one purpose and not, and therefore admissible, for another. However he went on to say (at p.263) with some justification, It is clear that the airline ticket in Rice, in the absence of any other evidence, was being put forward as proof of the truth of the statement implicit in it, namely, that a man named Rice flew from London to Manchester on the flight mentioned in the ticket. However, whether or not the case of Rice is still good law, the decision of the learned recorder in this case can be supported on the approach adopted by Cox J. The reference to Sean could be regarded as no more than a statement of fact involving no assertion as to the truth of the contents of the document. The most important issue with which the jury were faced was whether they could be satisfied that the identification evidence was accurate. That identification evidence was supported by the fact that the appellant admittedly came from Neasden, and it was from Neasden that the car was taken which was used on the robbery, and it was to Neasden that the taxi driver took a man who he identified as the

appellant. The appellant's name was Sean, and if the jury were satisfied that the gun was used on the robbery and that the pieces of paper were linked to the gun, then the reference to Sean on the paper could be a further fact which would fit in with the appellant being the person who committed the robbery. In dealing with the distinction between writing which is admissible and which is not admissible in these circumstances, Cross on Evidence (6th ed. at p.464) states: In these cases it seems that the writing when properly admissible at all, is relevant not as an assertion of the state of facts but as itself a fact which affords circumstantial evidence upon the basis of which the jury may draw an inference as it may from any other relevant circumstance of the case. The inference that the jury could draw from the words written on the piece of paper is that the paper had been in the possession of someone who wished to write Sean rules, and that person would presumably either be named Sean himself or at least be associated with such a person, and thus it creates an inferential link with the appellant. By itself it could not possibly satisfy the jury *225 that the appellant was the other robber, but it could be circumstantial evidence which could help to satisfy the jury that the Crown's case was correct. This approach to the probative value and relevance of the evidence can be readily illustrated by examples where it could not be suggested that the evidence was inadmissible as being hearsay. If instead of the word Sean appearing on the paper the paper had blood upon it and could be linked to the gun by other evidence, or the gun also had blood upon it, and both samples were of the same blood group as that of the appellant, or again if the gun was proved to have been used in the robbery, the samples could provide evidence which the jury could perfectly properly be asked to take into account, albeit that the appellant's blood group was one which was extremely common. The rarity of the blood group would only go to the weight of the evidence and not its admissibility. Similarly, if the gun had been wrapped in a local paper normally only circulating in Neasden, that again, having regard to the fact that the appellant admittedly came from Neasden, would have been relevant circumstantial evidence. If there had been written on the pieces of paper the appellant's full name, then clearly that would have been much stronger circumstantial evidence, but, although the name Sean may be fairly common, it is still material to which the jury could have regard. In the view of this Court therefore, the learned recorder was entitled to rule as he did, since the evidence was not unduly prejudicial. This Court recognises that the probative value of this part of the Crown's case was not great and many other judges could have taken the view that its introduction was an unnecessary complication. However the evidence having been admitted, it was important that the jury were correctly directed as to the status of the evidence by the learned recorder in his summing up. What the learned recorder in fact did was at the outset of his summing up to summarise the rival contentions and, having referred to the identification evidence as the first limb, he went on to deal with the evidence as to the gun as being the second limb but did so by referring to the links which the prosecution have to establish between the gun and the robbery and the gun and the pieces of paper,

and set out also the contentions of the defence as to why no inference can be drawn adverse to the appellant from this evidence. Later in his summing up he goes through exactly the same process reminding the jury of both sides' contentions. In the view of this Court this was a perfectly proper approach, although the fact that the appellant came from Neasden together with the other evidence about Neasden was much stronger confirmation of the Crown's evidence as to identification than was the evidence linked to the gun. When properly analysed therefore, this Court takes the view that there is no substance in Mr. Grunwald's first ground of appeal. The second ground of appeal relates to the fact that after Mr. Grunwald opened the defence case to the jury, and indicated the nature of the evidence which he would be calling on the appellant's behalf, in particular in relation to the alibi, he found that one of the witnesses to whom he had referred had failed to attend court. An adjournment was granted by the recorder to enable that witness to attend, but he did not do so, and it is Mr. Grunwald's contention that the jury, having been told about the witness and the evidence which he could give, would be prejudiced against the appellant when the witness did not turn up. However nobody suggested that the appellant was at fault and the matter was perfectly properly dealt with by the learned recorder saying that he proposed to *226 tell the jury that they had to consider the case on the basis of the evidence they had heard and that it was not the appellant's fault that the witness had not attended and they must not speculate as to why he did not do so. The third ground relates to a rather more worrying matter. When the court adjourned because of the absence of the witness, a Detective Sergeant King, the officer in charge of the case, who had been sitting in Court, went to a bus stop to wait for his bus, where he was seen in the company of two members of the jury and was in fact in the company of three members of the jury. The Detective Sergeant gave evidence about this and the learned recorder's finding on the evidence was that the officer did speak to one of the members of the jury but what was said was an exchange of pleasantries which had nothing to do with the case, though the officer did in fact overhear one of the members of the jury saying something about the absence of the witness. The learned recorder was quite satisfied that there was no possible danger that the jury were approached, spoken to or influenced about the case by Detective Sergeant King and that it had led to no possible injustice and no possible prejudice in the conduct of the case. In these circumstances, although this Court fully endorses the view of the learned recorder that it would have been wiser if the officer had not said anything at all to the members of the jury waiting for the bus, he should have simply walked away, there is no possible basis upon which this Court could fault the approach adopted by the learned recorder. Those being the grounds of appeal it follows that this appeal must be dismissed. Representation

Solicitors: Chief Prosecuting Solicitor, hames Valley Police, Abingdon, Oxon., for the Crown.

Appeal dismissed. 2013 Sweet & Maxwell