About this case:

• Citation:
  [2022] NICA 1
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice Adrian Colton

The court concluded that the trial judge was entitled to admit previous conviction evidence on the grounds that it was relevant to an important matter in issue between the defendant and the prosecution, namely to rebut his defence of innocent association.

Background

In September 2019, police searched 27 Sunnylands Avenue in Carrickfergus, the home of the appellant’s deceased mother. They discovered small quantities of Class B drugs and a small box of 37 x .22 LR calibre cartridges found in a yellow “Marigold” glove in the front pocket of a black rucksack.

During the police interview, the appellant denied any knowledge of the ammunition, but accepted he owned the rucksack and some of its contents. The appellant stated that he was his mother’s carer and was at the house practically all the time leading up to her death.

A forensic examination concluded that the appellant’s DNA was present inside the glove, but not on the ammunition box or the cartridges. The appellant gave evidence at the trial and denied any association or knowledge of the ammunition.

The appellant argued that he may have used the glove to clean while caring for his mother. He stated that there were lots of rubber gloves at the property. However, the arresting detective gave evidence that the seized glove was the only glove found on the premises.

The defence case was that the ammunition was hidden in the rucksack by another individual unknown to the appellant and that he had an innocent explanation as to how his DNA got onto the glove.

The only issue for determination by the jury was whether or not the appellant was in possession of the ammunition in question. They found him guilty for possession of ammunition in suspicious circumstances contrary to Article 64(1) of the Firearms (Northern Ireland) Order 2004.

He was sentenced to a determinate custodial sentence of three years.

Bad character evidence

The appeal centred on the decision by the learned trial judge to admit bad character evidence under the Criminal Justice (Evidence) (Northern Ireland) Order 2004 in relation to a 2004 conviction for possession of an imitation firearm.

The appellant argued that the application was out of time. It ought to have been served on the defendant within 14 days of committal, while the prosecution served a notice to adduce evidence of bad character only two working days before the trial.

The appellant also argued, per R v Gyima [2007] EWCA Crim 429, that bad character evidence ought not be used to bolster up a weak or unsatisfactory Crown case, and that this conviction had happened 16 years prior.

Grounds of appeal

Leave was granted by Mr Justice O’Hara on the grounds that it was arguable that the admission of the conviction was wrong because of the combination of three factors:

1. Article 6(4) of the 2004 Order compels the court to have regard in particular to the length of time between the commission of the offence which led to the conviction in 2004 and the circumstances giving rise to the proceedings.
2. The prosecution adduced no evidence as to the circumstances of the 2003 offence in England other than what was found in a Google search i.e. a BBC news report.
3. The Sheffield Crown Court conviction was insufficient to establish “propensity”.

Court of Appeal

The Court of Appeal had “some concerns” about the manner in which the application was considered. Of particular concern was the lateness of the application. There was no real inquiry by the trial judge as to the basis for the delay other than reference to “an oversight” and an assumption that the pandemic had been a cause.

In assessing the issue of ‘propensity’, the court noted that the prosecution argued that the evidence was included under Article 6(1)(d) and 8(1)(a) to rebut the appellant’s defence of innocent association rather than relevance based on propensity, as the appellant had a previous relevant conviction for a firearm offence, albeit an imitation firearm.

The prosecution argued that the conviction for an imitation firearm offence was relevant to the appellant’s defence that the presence of the ammunition in his rucksack was a coincidence. They claimed the evidence should be admitted to rebut the appellant’s case of innocent association or coincidence.

The previous conviction was relevant to the credibility of the appellant’s explanation that it was sheer coincidence that ammunition was found in a rucksack belonging to him. Because it was relevant to rebutting the defence of innocent association it could lawfully be admitted under section 6(1)(d) without reference to the issue of propensity under Article 8. The conviction itself was sufficient to demonstrate the appellant’s connection to firearms.

In relation to the gap in time between the conviction and the offence, the court found that this was only one factor the trial judge had to take into account. The court is merely obliged to take this matter into account under Article 6(4), which was “something the [trial judge] clearly did”.

Finally, the court found that there was a strong circumstantial case against the appellant, based on a myriad of physical and forensic evidence. In her closing address to the jury, the trial judge referred to the length of time between the conviction, and said that the jury might think that the conviction was of “lesser significance […] It’s only a tiny, tiny part of the evidence.”

The court was, however, concerned that this address made reference to the appellant’s possible “tendency to commit this type of offence”. This was an error, as “it was not appropriate” for the trial judge to admit the conviction evidence on the ground of propensity where such an argument was not pursued by the prosecution.

Conclusion

Ultimately, the court accepted that the prosecution case was a strong one and the admission of the conviction did not serve to bolster a weak case. Overall, the issue of the appellant’s previous conviction was left to the jury in a fair way and it did not play an inappropriate or disproportionate role in the proceedings.

Accordingly, the appeal was dismissed.