Neutral Citation no. [2012] NICA 16 	Ref:     	MOR8526	
			
Judgment: approved by the Court for handing down	Delivered:	08/06/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______

THE QUEEN

-v-

LEE SLOSS
________

Before: Morgan LCJ, Higgins LJ and Coghlin LJ
________

MORGAN LCJ (giving the judgment of the court ex tempore)

[1] 	The appellant was convicted before Her Honour Judge Smyth and a jury on 10 June 2011 at Belfast Crown Court of burglary with intent to steal contrary to section 9 (1) (a) of the Theft Act (Northern Ireland) 1969. Leave was given by McCloskey J on the basis that the jury were not directed to consider whether the bad character evidence admitted by the learned trial judge fortified the identification evidence upon which the prosecution relied. The grounds of appeal contend that the learned trial judge erred in not withdrawing the case from the jury at the end of the prosecution case and that she further erred in admitting evidence of the appellant's bad character when it was unfair to do so.

Background

[2] 	Shortly after midday on 5 March 2010 Suzanne Rea was in the bedroom of her home at 1 Rugby Avenue Belfast when she heard a noise downstairs coming from the dining room. She walked down to the door of the dining room and saw a man poking about bits of sanitary ware which were stored there. For a split second she thought that this was one of the builder’s men who had been working in the house but then realised that it was an intruder. She challenged the man and he walked backwards towards double doors and then left the premises. She chased after him but did not catch him.

[3] 	She returned home and rang the police telling them what had happened. She described the intruder at 6'1" tall wearing a black hoody with white piping around it and jeans. She stated in evidence that her confrontation with the intruder lasted approximately 1 minute. No such clothing was ever recovered from the appellant.

[4] 	On 15 April 2010 Ms Rea attended Strandtown Police Station. She had told police that the intruder’s hair was dark and that he had short thick dark-coloured eyebrows in a statement made on the day of the incident. She was asked to view an album containing 12 images of people. She picked out the appellant and stated in evidence that she had said at the time that the appellant's face jumped off the page at her. The police officer accompanying her had not made a note of that statement. In cross examination she said that she remembered some conversation with the policeman about this. She was asked to complete a range of options indicating how sure she was that the person picked out was the intruder. She stated that she was 75% certain. She explained that she had picked out the person who was in her house that day and that her percentage confidence that it was that person reflected the fact that she recognised that identifications can be mistaken. She was naturally cautious.

[5] 	On 26 April 2010 Ms Rea attended Donegall Pass police station and took part in a video identification procedure. She again picked out the appellant as the person who had been the intruder on 5 March 2010. She did not qualify that identification but did accept that there was some risk that it might be affected by her earlier identification.

[6] 	In support of their case the prosecution sought to introduce 127 previous convictions of the appellant related to burglary, criminal damage, going equipped for theft, receiving stolen property, handling and theft. The learned trial judge admitted 25 convictions for burglary and attempted burglary of dwelling houses demonstrating that the appellant had been a prolific burglar of dwelling houses over a period of approximately 20 years. In respect of three of those recent convictions evidence was adduced that the appellant had entered the dwelling houses during the day and when detected had sought to explain that he'd simply gone to the wrong place. The intruder in this case had expressed himself in precisely that way.

Discussion

[7] 	Mr Mallon QC for the appellant submits that the identification evidence was so weak that the case ought to have been withdrawn from the jury. The learned trial judge did not accept that submission. The evidence of Ms Rea was that the image of the appellant jumped out of the page at her. She explained that she had applied a percentage between 70 and 75% because she recognised that identifications can be mistaken. It reflected her caution. She had identified the appellant in a video identification procedure two weeks later. Her opportunity to see the appellant had been good. She had both seen him and spoken to him face-to-face in her home in the middle of the day. She stated that the confrontation lasted approximately 1 minute. In our view the learned trial judge was correct to leave this matter for assessment by the jury who could easily have found this a compelling case on identification.
[8] 	The argument in relation to the admission of the bad character evidence relied upon the guidance given by Rose LJ in R v Hanson [2005] 2 Cr App R 21 where he stated that if there was no or very little other evidence against a defendant it is unlikely to be just to admit his previous convictions whatever they are. For the reasons set out above we do not consider that this was such a case. The previous convictions in this case showed evidence of a propensity in relation to the manner in which this burglary was carried out. Such evidence is capable of supporting identification evidence (see R v Randall [2006] EWCA Crim 1413). Although a different view might have been taken about some of the earlier convictions we do not accept that Article 6 (3) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 prevented the admission of these convictions having regard to the strength of the identification evidence.

[9] 	The final point is that identified by McCloskey J. R v Akaidere [1990] Crim LR 808 was a case in which the identification evidence consisted of a fleeting glance by two police officers. There was additional evidence connecting the appellant to the motor vehicle involved in the commission of the offence. In that case in summing up to the jury the judge advised the jury that were it not for the supporting evidence he would have withdrawn the case from them. This was criticised on the basis that by doing so he was indicating to the jury that the evidence was supportive rather than leaving it to them to determine that fact. Despite this misdirection the conviction was judged safe.

[10] 	In her charge to the jury the learned trial judge correctly charged the jury that they must not convict the appellant only because he has a bad character and indeed she emphasised that fact on a number of occasions. She gave the classic bad character direction in that she advised the jury that they had to consider whether the appellant had a tendency to commit an offence of that type and whether that tendency made it more likely that he had committed the offences with which he was charged.

[11] 	Having dealt with the bad character direction the learned trial judge then moved on to give a standard Turnbull direction. She carefully reviewed the identification evidence and warned the jury in the strongest terms of the special need for caution. She did not, however, address the jury on how they might use the bad character evidence as supporting evidence for the identification. The effect of that omission, however, in our view was beneficial to the appellant. The learned trial judge directed the jury that the case against the appellant depended wholly on the correctness of the identification by Ms Rea. The direction, therefore, did not invite the jury to the view that her identification might be supported by the bad character evidence.

[12] 	The question for us is whether the conviction was safe. In the circumstances of this case we have no doubt that this was a safe conviction. The appeal is dismissed.