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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hastings-Coker & Anor, R. v [2014] EWCA Crim 555 (28 February 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/555.html Cite as: [2014] EWCA Crim 555

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 28th February 2014

1. MR JUSTICE CRANSTON: These two 21 years olds renew their applications for leave to appeal their convictions.
2. On 24th October 2012 in the Crown Court at Inner London they were each convicted of possession of a firearm with intent to endanger life (count 3 on the indictment) and possession of a prohibited (count 4). On the same day they were each sentenced to 7 years' detention in a young offender institution on count 3 and 3 years' imprisonment on count 4 concurrent. Hastings-Coker was convicted by a majority of 11 to 1 and Smith by a majority of 10 to 2.
3. A co-accused, Stephen Bamonadio, was acquitted on two counts of possession of a firearm with intent to endanger life and on two counts of possession of a prohibited firearm.
4. In very brief outline, shortly after midnight, on 24th May 2011, the applicants and Bamaonadio were stopped in a BMW hire car in Canning Town. Smith was driving the car. Hastings-Coker was the front seat passenger. Bamaonadio was in the rear. There was a Ford Puma parked in the vicinity. Smith had been doing work on that car. In the boot of that car, the Ford Puma, police officers found a blue holdall. Inside was a loaded sawn-off shotgun wrapped in a number of bags.
5. There were four compatible cartridges. A fingerprint of Hastings-Coker was found on the black bin liner which was the second of the four bags in which the firearm was found. Smith was in possession of a car key to the Puma. The Puma was registered in the name of a fourth party, called "E-man" in the course of the trial, who told police officers that he did not know any of the defendants and had never owned a Ford Puma. On the same day the police found the gun and the cartridges in the Puma they also went to Smith's home address and inside a storage cupboard at the entrance to the property they found 27 cartridges together with a stab proof vest. The cartridges could not be used in the gun found in the boot of the Puma. In interview both applicants made "no comment" to all questions.
6. The prosecution case was that the two applicants and Bamaonadio jointly possessed the gun found in the boot of the Ford Puma jointly. Each had access to it and were aware of the bags and its contents. Since it was loaded they possessed the gun with intent to endanger life. The presence of the cartridges in the storage cupboard demonstrated that Smith had an interest in live ammunition for shotguns.
7. On behalf of Smith, Mr Sullivan first focused his fire on the judge's remarks in his summing-up that the applicants and Bamaonadio could still be guilty of the offence if E-man had been involved. Mr Sullivan contended this was a basis for conviction which was not advanced by the Crown, nor canvassed with the parties prior to the summing-up. The Crown's case was that only the three men were involved and that E-man had no involvement with the firearm.
8. In this regard Mr Sullivan quoted in aid a commentary by the late Professor Smith in the Crim LR to the case of R v White [1987] Crim LR 505. Professor Smith said that the theory advanced by the judge in White had been a perfectly possible one on the facts, and if the matter had been drawn to the attention of counsel well before the summing-up no conceivable complaint could have been made of his direction:

"But counsel was deprived of the opportunity to cross-examine and argue on that issue and that was the most material irregularity precluding the application of the proviso."

9. Mr Sullivan's submission was that the judge here was suggesting something in his summing-up which had not been raised at all, namely that the three accused, with E-man, could all be involved. That should have been raised beforehand, so he could have dealt with it.
10. In our view, the judge was entitled to put forward an explanation in the way that he did. What had happened was that in his closing address Mr Sullivan had cast blame on E-man, the person in whose name the Ford Puma was registered. He asked rhetorically why, if E-man was innocent, he had not come to court. There had been a warrant for him but he had disappeared. Given Mr Sullivan's closing address to the jury, this was an issue which was "actively canvassed in the course of the hearing" - to use the words of Watkins LJ in R v Christina [1987] Crim LR 504, to which Professor Smith also made reference. Mr Sullivan conceded, in argument before us, that there was no new evidence which he would have brought. This was in contrast with the situation in White, where cross-examination would have, on the submissions before this court in that use, occurred.
11. In our view, since there was a suggestion advanced before the jury that someone other than a defendant was guilty, the judge was entitled to point out that, even if they found that to be so it did not preclude a finding that any particular defendant was guilty. Since Mr Sullivan raised this matter in the way that he did, in closing, we take the view that the judge was entitled to deal with it.
12. On behalf of Smith, Mr Sullivan then challenged the judge's ruling under section 78 of the Police and Criminal Evidence Act 1984, which allowed prosecuting counsel to adduce evidence in relation to the finding of the 27 live cartridges at Smith's home address. In Mr Sullivan's submission this was bad character evidence and an application should therefore have been made under the Criminal Justice Act 2003. Alternatively, the evidence should have been excluded under section 78.
13. In Mr Sullivan's submission, these cartridges were not illegal to have; the cupboard where they were found was easily accessible to others; and the cartridges could not be used in the firearm found in the Puma. There was no real link of those cartridges with Smith.
14. In his ruling the judge agreed with prosecution counsel's submission that the evidence was connected with the facts of the offence and was not bad character evidence. He reasoned that its admission would not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It was clearly potentially relevant. We agree.
15. In defining bad character evidence section 98 of the 2003 Act excludes evidence which

"(a) has to do with the alleged facts of the offence with which the defendant is charged".

16. In R v Tirnaveanu [2007] EWCA Crim 1239, [2007] 1 WLR 3049, this court said that those words required some nexus in time between the offence with which the defendant is charged and the evidence of misconduct which the prosecution seeks to adduce. In our view, there was that nexus in this case. Smith denied knowledge of the presence of the firearm and the live cartridges found in the Puma car. The finding of the live cartridges in the cupboard show that there was unlikely to be an innocent explanation for the items found in the car. If the jury were satisfied that Smith knew of their presence in the cupboard it also demonstrated that he was a person who had an interest in live shotgun cartridges. Given that the fact that the items were found as part of the same search as with the gun in the Puma, this evidence fell within section 98(a) of the Act. There was no need for a bad character application. It was evidence that had to do with the alleged facts of the offence.
17. For the reasons given by the judge we do not regard the evidence of the cartridges in the cupboard it as falling foul of section 78. In any event, had it been treated as bad character evidence we cannot conceive of how in practice the matter would have been dealt with differently.
18. Thirdly, Mr Sullivan returned to the way the judge dealt with the half-time submission for Smith. He focused on the endangering life count and submitted that there was no evidence to suggest knowledge that the gun was loaded or accompanied by other cartridges. That was reinforced by the absence of any forensic link of Smith to the gun, the judge said, to the cartridges or to the bags. In his ruling, that the jury were entitled to look at the circumstances as a whole. In other words, in the Puma was a shotgun which was loaded with four further live cartridges in the same bag. Smith had a key to that Puma. It was circumstantial evidence. If the jury were satisfied that Smith knew the gun was there, they may also be satisfied that he knew it was loaded. The judge realistically added that, since Smith had not said anything to the police, these circumstances were entirely unexplained. We agree with the judge's approach on this point and do not regard it as in any way flawed.
19. Mr Sullivan, for Smith, was joined by Ms Ruth Jones, for Hastings-Coker, in challenging the judge's half-time ruling. Her submissions, however, were different. She took objection to the matter going to the jury on the basis of one link only for Hastings-Cocker namely, the fingerprint found on the bin liner wrapped around the live firearm and the ammunition. During the course of her submissions to the judge she had placed reliance on a Scottish authority, Campbell v Her Majesty's Advocate [2008] High Court JAC 50. Before us she did not advance that any further. We simply note in passing that that was a different case because there the cupboard was clearly accessible by persons other than the appellant.
20. Ms Jones' submission before us placed a heavy reliance on the way the judge put the case to the jury, namely the link with Bamonadio which failed in that he was acquitted.
21. We can deal with this point shortly by quoting the reasons of the single judge:

"One of these bags [in the Ford Puma] had your fingerprints on it. There was therefore a case for you to answer. [Campbell] does not assist. In that case the only evidence against the defendant was a fingerprint on a plastic bag (containing a rifle) found in the flat where he had stayed."

The other evidence to which the single judge was referring was the association of Hastings-Coker with Smith; on 27th May he was found with Smith in the BMW hire car," and Smith had the key to the Ford Puma. In our view again, the judge was perfectly entitled to make the ruling he did.

22. Both counsel before us have appeared pro bono. We are grateful for the submissions they have made but we refuse both applications.