Dunn & Anor, R. v

Where a defendant gives evidence against a co-defendant, the statutory protection against bad-character cross-examination is lost. Cross-examination about unproven allegations may then be permitted if it is relevant to credibility.

A co-defendant may seek to adduce propensity evidence against another defendant in a cut-throat case only where it is genuinely relevant to an issue between the prosecution and the defendant seeking to rely on it. Mere arguability is insufficient. The trial judge must apply a rigorous relevance analysis and prevent speculative satellite issues from distracting the jury.

Strong directions can cure prejudice caused by unsupported allegations where the evidence gives no proof of the alleged misconduct.

Dunn and Gonzalez were convicted at Maidstone Crown Court of conspiracy to supply cocaine. The prosecution case arose from a meeting in a hotel car park at which Gonzalez handed a bag to Turner, the passenger in a vehicle driven by Dunn. About two kilograms of cocaine were found in that vehicle.

Each appellant denied knowing that the transaction involved cocaine. During cross-examination, Dunn gave evidence that Gonzalez had admitted knowing about the cocaine. This led to cross-examination of Dunn about other alleged misconduct under Criminal Evidence Act 1898, followed by cut-throat defences.

The appeals concerned the scope of that cross-examination, severance, the exclusion of proposed propensity evidence against Dunn, cross-examination of Gonzalez, and a renewed disclosure ground.

1. Both appeals against conviction were dismissed. Neither conviction was unsafe.

2. Dunn had given evidence against Gonzalez. The protection in section 1(3)(iii) of the Criminal Evidence Act 1898 was therefore unavailable to him. The trial judge correctly allowed cross-examination about pending charges and an uncharged money-laundering allegation because the issue was relevance to Dunn’s credibility. Dunn’s answers denied all criminality. They did not provide evidence that he had committed the alleged misconduct.

3. The judge correctly refused severance. Severance at that stage was exceptional. The interests of justice strongly favoured a joint trial of alleged conspirators, notwithstanding the difficulties caused by cut-throat defences. The judge’s clear direction that the allegations were irrelevant to guilt and could bear only on credibility sufficiently protected Dunn.

4. Gonzalez could in principle seek evidence of Dunn’s propensity to deal in drugs if it was relevant to an issue between the prosecution and Gonzalez: R v Randall [2003] UKHL 69. However, the suggested possibility that the cocaine was already in Dunn’s vehicle was speculative. Applying the rigorous relevance approach in R v B (C) [2004] 2 Cr App R 34, the court held that the proposed evidence was inadmissible. It would otherwise have created an inappropriate satellite trial about three unrelated allegations.

5. Gonzalez was properly cross-examined after Dunn’s attack on his character. His denials likewise did not prove the suggestions put to him. The judge’s direction that the jury should decide the case on actual evidence, rather than unsupported questions, was adequate.

6. The court rejected Gonzalez’s renewed disclosure ground. It regarded itself as bound by R v H and C [2004] 2 WLR 335 HL. It also recorded, without full argument, that the statutory disclosure regime did not conflict with Edwards v United Kingdom (1992) 15 EHHR 417, which concerned procedure rather than the substantive disclosure test.

• Court of Appeal (Criminal Division): dismissed both appeals against conviction in [2005] EWCA Crim 1416.
• Crown Court at Maidstone: convicted both defendants on 10 May 2004 of conspiracy to supply cocaine and later sentenced each to nine years’ imprisonment.