ABSTRACT
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 ... 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 parttime 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 are called Sean, the evidence was highly prejudicial. He accepted that the decision of this court in Rice (1963) 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). He drew the court’s attention to a decision of the Supreme Court of Australia, Romeo (1982), 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 DPP (supra). In Rice Winn J, in giving the judgment of this court ... 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. 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 fact – for instance, that a person who made use of the document had certain information in his possession at a relevant time – and 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 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 edn 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 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 ...11
