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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 >> Adnitt, R v [2002] EWCA Crim 2633 (8 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/2633.html Cite as: [2002] EWCA Crim 2633

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 8th November 2002

8th November 2002

1. MR JUSTICE BUTTERFIELD: On 10th October 2001 Simon Adnitt was convicted by a jury in the Crown Court at Sheffield of three counts of possessing drugs with intent to supply, namely, crack cocaine, heroin and cannabis. He was sentenced to seven years' imprisonment. He now renews his application for leave to appeal against conviction following refusal by the single judge.
2. The charges arose out a raid carried out by police officers at an address at 23 Rising Street, Sheffield, on 1st February 2001. The prosecution case was that as the officers entered the premises the applicant ran from the dining room to the living room carrying a large paint pot and wearing rubber gloves. The applicant was arrested in the living room of the house. By then the paint pot was on a shelf nearby. Inside it there were wraps of crack cocaine, heroin powder and electronic scales. Elsewhere in the room there was a large block of cannabis resin and two bin bags containing about 1.9 kilogrammes of cannabis. The applicant had about £1,250 on his person.
3. A further search of the house revealed a camera installed outside and powered from a room inside the house. A lead ran from the camera to a nearby house where there was a television monitor giving a view of the door outside number 23.
4. The applicant's clothing and the gloves he had been wearing were seized. There was no trace of any drugs on the clothing or the gloves, apart from traces of cannabis resin in his jacket and trouser pocket. The applicant said he was himself a user of cannabis.
5. In interview he denied he had ever had the paint pot which was found to contain the drugs in his hands. He had leased the house from a Mr Khan and he was renting a room in the house to a man named Lee for the same amount that he was paying Mr Khan. He had gone to number 23 Rising Street to clean the premises in preparation for a new tenant. He had just arrived and put the rubber gloves on when the back door was broken down and he saw that there were police officers coming in. He tried to run away from the police because he thought they would beat him up if they found him in the premises. The money in his pocket was rent that he had received from Mr Lee and other tenants in a further property that he rented out nearby. He knew nothing of the camera on the outside of the premises or the monitor at the nearby house. At trial he gave evidence to the like effect.
6. In the course of the trial the defence made a number of submissions and it is in respect of the judge's rulings on those submissions that the application for leave to appeal centres.
7. At the outset the defence applied to exclude the evidence of the television link on the basis that there was no evidence to suggest any drugs activity in the house where the monitors were, nor anything to suggest any control of those premises by the applicant, or that he was the man who had installed the camera. Thus, said the applicant, it was highly prejudicial and not probative to the issue before the jury, which was whether the applicant was in possession of the drugs found with intent to supply.
8. The Crown submitted that the evidence was relevant to show that whoever had control of the Rising Street address was concerned about security and that the applicant, as a tenant of the premises, might reasonably be expected to know what systems were present at the house he occupied. Further, the applicant had admitted in interview visiting the premises where the monitors had been found.
9. The application to exclude the evidence was rejected, in our judgment rightly so. The evidence of the television link was potentially relevant. The judge was entitled to rule as he did against its exclusion.
10. The trial started. On the second day of the trial the defence applied for the jury to be discharged because the Crown's expert, who had examined the applicant's clothing and had found no controlled drugs upon it, had made a second statement. In that second statement, which was only served on the defence on the second day of the trial, he opined that if the applicant was in close contact with the other drugs traces might have been expected to be found on his clothing, but packaging was a factor, and in view of the way in which the drugs were found packaged the expert concluded that he would not necessarily have expected to have found transfer. Thus absence on the clothing should not necessarily be taken to mean that the applicant had not handled the drugs.
11. The trial judge agreed that the defence would be disadvantaged if that interpretation was placed before the jury and that if the Crown persisted in seeking to place that interpretation before the jury the defence would be entitled to an adjournment to instruct their own expert. The defence wanted to instruct their own expert to comment on lack of drugs contamination, but the judge refused to discharge the jury, or adjourn the trial, considering that it was sufficient if the Crown did not advance the new interpretation placed on the absence of traces by the prosecution expert.
12. The judge refused the application, as, in our judgment, he was entitled to do. The defence had the opportunity, if they wished, to attack the evidence of the prosecution's expert by pointing out the stark contradiction between his first and second statements, or, in the alternative, to require the interpretation advanced by the expert in the second statement to be omitted altogether, so that all the goods points and none of the bad ones from the defence point of view remained. There was no unfairness in the judge ruling as he did.
13. On the third day of the trial it was learned that the prosecution expert was not in fact in the United Kingdom but in New Zealand. The Crown announced that it had no duty to call the expert and therefore would not be calling him. The defence applied to the judge to invite the Crown to call the expert but the Crown resisted. The judge ruled that the Crown was under a duty to call the witness if the defence asked for it. A video link between the court and New Zealand was then proposed. But later in the trial the judge agreed with defence submissions that the evidence could not be received in that way. The defence then submitted it would be unfair to try the applicant without the prosecution expert and it would amount to an abuse of the process of the court to continue. The Crown, submitted the defence, was ignoring the court's invitation to call the witness. The Crown responded by accepting that, if necessary, the trial would have to come to an end and there would be considerable expense, but nonetheless they were prepared to take that course if the court so directed.
14. After hearing lengthy submissions the judge ruled that the prosecution had reached the stage where they had taken all reasonable steps to secure the attendance of the witness but it was impossible. He concluded that he had a discretion to permit the trial to proceed provided there was no injustice. He considered the extent to which the absent evidence might be likely to assist the defence and concluded that what the witness had to say was dangerous for the defence. It was a matter for speculation what his stance would be after he had been cross-examined, but in the judge's view there was no abuse of process in permitting the trial to continue. It was neither oppressive to proceed, nor would such a course cause any injustice to the applicant.
15. Again, in our judgment, the judge was entitled to rule as he did. There was no unfairness. The defence, had it wished, had the opportunity to attack his evidence, or to require the omission of his interpretation to which we have already referred. This was a matter for the exercise by the judge of his discretion. He took into account all the relevant factors. It is not arguable that his conclusion was one which no reasonable judge properly directing himself on the principles to be applied could have reached.
16. That, however, was not the end of the rulings required of the judge in this case. As part of the defence case the applicant called a friend of his, Mr Suliman. Mr Suliman gave evidence that he knew the applicant and knew that the applicant rented out property. He had spoken on the telephone to a man who had given the name Martin Lee, a man whom the prosecution suggested did not exist.
17. In the course of his cross-examination by the prosecution he was asked about the premises where the monitors were, where he had, in fact, himself been arrested in connection with drug dealing. That matter was not put to the witness. But he was asked whether any of the people he had seen at the Fox Street address were dealing in drugs. He said he had seen no such thing. The defence did not object to those questions, but later applied to discharge the jury on the basis that the line of questioning was in effect to assert that the place where the monitors were kept was a place where drug dealing took place. The judge declined to discharge the jury.
18. In our judgment, he was right to do. There was no impropriety in the Crown's suggestion that the Fox Street premises were used for drug dealing. They had material on which to base that suggestion and were entitled to explore it in the course of cross-examination.
19. Finally, the applicant submits that in summing up the case the judge failed to set out the case for the defence. That ground, too, is unarguable. The jury were reminded in detail of the applicant's evidence and the general nature of his defence was clearly spelt out to them.
20. In the judgment of this court there was ample evidence to found the jury's verdicts. None of the grounds advanced on behalf of the appellant are such that they might either individually or collectively persuade the Full Court that the convictions were unsafe. The application is accordingly refused.