R v Dunstuan 2023


A group of eight men broke into a house. This was captured on CCTV and showed at least two of the men were carrying crowbars. The crowbars were used to force entry to the house, and one was used to strike an occupier of the house to the head, causing a wound that required stitching. AB and R could be identified on the CCTV, but not D.
 
D was jointly charged with R and AB with aggravated burglary, contrary to section 10 of the Theft Act 1968, and unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861.

The issue in dispute was whether D, R and AB could be rightly identified as being the offenders involved in the incident. The case specifically against D was that he was a participant in the offences; that he either lent support at the house, or was a lookout, or was a getaway driver. Circumstantial evidence was introduced in support of this argument and included telephone communication evidence; this showed that D and AB had carried out reconnaissance in the area near the house, after which D, AB and R were involved in further phone calls.

At trial, the prosecution made bad character applications under section 101(1)(d) of the Criminal Justice Act 2003 and sought to introduce previous convictions of D, R and AB to demonstrate relevant propensity. In D’s case, the specific convictions the prosecution sought to introduce were for convictions in 2013 of possessing a bladed article in public, contrary to section 139 of the Criminal Justice Act 1988 and for wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. However, on the basis of there being insufficient nexus between those convictions and the present case, the judge refused the application due to a risk of prejudice to D.

When giving evidence, D denied any knowledge of, or involvement in, the burglary or, in any reconnaissance relating to that. D acknowledged he had been close to the scene both before and after the incident but explained that was because R had asked him to drop him off and collect him from that location. D also denied having any crowbars in his vehicle, explaining that he had a family and children to think of.
 
The prosecution made a further application to adduce bad character evidence in the form of D’s previous convictions with the second application made under section 101(1)(f) instead and, in order to correct a false or misleading impression namely, that D was not a violent person or, a person who would use a weapon. The judge granted the application, agreeing that D had created a false impression that he was a family man who would not involve himself in such matters and, that it was reasonable and proportionate to admit the previous convictions into evidence. The judge explained in his legal directions to the jury why the evidence had been admitted. D, R and AB were jointly conviction of aggravated burglary and unlawful wounding.

D was convicted of aggravated burglary and unlawful wounding, and appealed against the convictions on the basis that the judge had incorrectly allowed bad character evidence to be admitted under section 101(1)(f).
 

Held


Appeal dismissed; convictions upheld.

There is no power to exclude evidence admissible through gateway (f) of section 101 of the Criminal Justice Act 2003, unlike the other gateways under section 101. However, it is still an option for a judge to exclude evidence under section 78 of PACE on grounds of unfairness, should it be appropriate to do so. 
 
The judge had carefully considered each of the matters which the statutory provisions required him to consider. He was correct to find that D had created the impression that he was not the sort of person to participate in crimes of the type charged involving violent offending by a group using a weapon or weapons. That was a false or misleading impression, because in 2013 he had taken part in just such offending. 
 
Care must always be taken when considering admitting evidence through this gateway, if it may be said that the relevant statement by an accused is equivocal. But in this case, there was nothing equivocal about the impression given.  The judge was entitled to find that there was a false impression which needed to be corrected and that the previous convictions had probative value in making that correction. The evidence of the previous convictions did not go further than was necessary for that purpose. The evidence was accordingly admissible.
 
The potential exclusion of the admissible evidence was a matter for the judge's discretion. There was no basis for saying that the judge exercised that discretion in a way which was not properly open to him. Although a number of years had passed between the 2013 offences and the present allegations, D had been a mature adult when he involved himself in serious offending in 2013. If no reference had been made to that earlier offending, the jury would have been left with a false or misleading impression, which D had deliberately created.