Onyeabor, R. v

A statement made by one participant in a criminal joint enterprise in furtherance of that enterprise is admissible against another participant at common law. It is not hearsay. The rule remains preserved by section 118(1)(7) of the Criminal Justice Act 2003.

Evidence falling within that rule is not rendered inadmissible merely because the other participant cannot later be called by the defence. The trial judge may properly refuse exclusion where the defence can place that participant’s account before the jury by other means and the surrounding evidence supports the joint-enterprise inference.

Following a retrial at the Crown Court at Woolwich, the applicant was convicted of possessing heroin with intent to supply. The prosecution alleged that he acted with Obu-Johnson in arranging and carrying out a proposed sale of heroin to undercover police officers.

The prosecution relied on recordings of what Obu-Johnson said to the officers. The applicant denied knowing of the drugs or participating in the transaction. Obu-Johnson had left the country and could not be called, although his statement to the defence was read to the jury.

After a single judge refused leave, the applicant renewed his application to appeal against conviction. The issues were whether the recordings were hearsay and whether they should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.

1. The renewed application for leave to appeal was refused. The conviction was safe and the evidence against the applicant was overwhelming.
2. The recordings of Obu-Johnson’s communications with the undercover officers were admissible. They were not hearsay. They were statements by an accomplice, made in furtherance of the unlawful joint enterprise to supply heroin, and were admissible against the applicant at common law.
3. That common-law rule was expressly preserved by section 118(1)(7) of the Criminal Justice Act 2003. There was ample independent evidence from which the jury could infer that the applicant and Obu-Johnson were acting together, including their repeated telephone contact, meetings during the transaction and transfers of the satchel containing the drugs.
4. The judge also correctly declined to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984. Obu-Johnson’s absence did not make admission unfair. The defence could, and did, have his statement read to the jury. It could also have sought to read his evidence from the first trial.
5. The court agreed with the single judge that there was no arguable legal error in admitting the evidence and no basis for treating the conviction as unsafe.

1. Court of Appeal (Criminal Division) — in [2009] EWCA Crim 534, the renewed application for leave to appeal against conviction was refused.
2. Single judge of the Court of Appeal — refused leave to appeal against conviction.
3. Crown Court at Woolwich — after a retrial before HHJ Pegden QC and a jury, convicted the applicant of possessing heroin with intent to supply and sentenced him to five and a half years’ imprisonment.