Nicholas & Anor v R.

Previous bad-character evidence may be admitted where it is relevant to a defendant’s association with, or access to, firearms connected with the alleged offence. It need not establish a propensity to commit murder. The statutory reference to propensity does not exhaust other relevant matters in issue.

The adequacy of a summing-up is assessed in its trial context. A judge must direct accurately on the law and fairly summarise the facts, but need not repeat every detail for a jury that has heard lengthy evidence and detailed submissions.

The appellants were convicted at the Central Criminal Court of the murder of Andrew Wanogho. The prosecution alleged that Nicholas arranged the shooting from prison using an illicit telephone, and that Dennie was the gunman or a participant. The evidence principally comprised mobile-phone and cell-site analysis, together with evidence of motive and witness interference.

Nicholas challenged the admission and summing-up treatment of his 2002 firearm and ammunition convictions. Dennie contended that the judge inadequately summarised the dispute over whether he or Hishack Palmer used telephone number 025, and failed properly to address an alleged change in the Crown’s case.

1. Both appeals against conviction were dismissed.

2. Nicholas’s earlier convictions for possession of a firearm and ammunition were admissible. It was unnecessary to decide whether they demonstrated a propensity to commit murder. They were relevant to the important issue whether he had an association with firearms, or with persons able to provide them, when the prosecution alleged that he arranged a shooting from prison. The court held that section 103 of the Criminal Justice Act 2003 identified included matters in issue but did not limit admissibility of other relevant material under section 100(1)(d). Admission did not have an adverse effect on trial fairness under section 101(3).

3. The judge’s direction on the previous convictions could have been fuller in light of Hanson [2005] 2 Cr App R 21. However, Nicholas had said nothing about the convictions, and the judge warned the jury not to treat them as proving the charge or to give them disproportionate weight. In the circumstances, the direction did not render the verdict unsafe.

4. On Dennie’s appeal, the judge was entitled to leave the attribution and use of telephone 025 as a factual issue for the jury. The jury had heard extensive evidence and submissions concerning the call schedules. The summing-up identified the competing cases and the decisive question whether the Crown had proved that Dennie used the telephone at the material time. The judge also appropriately left the alleged shift in the Crown’s case to the jury.

5. In a circumstantial-evidence case, the presence of a possible alternative inference does not require withdrawal from the jury. The question is whether, on the totality of the evidence, it would be unsafe for a jury to convict. The relevant evidence had to be assessed as a whole. Although the court deprecated the judge’s witness-by-witness method of reviewing evidence, his directions sufficiently identified the issues and were not unfair or unbalanced.

• Court of Appeal (Criminal Division) Dismissed both appeals against conviction.
• Central Criminal Court On 16 October 2008, the appellants were convicted of murder before His Honour Judge Hone QC and a jury, and each received life imprisonment.