Sule v R

Evidence of prior incidents alleged to have created the motive for the offence charged may be evidence which has to do with the alleged facts of that offence for section 98 of the CJA 2003. Section 98 contains no express or implicit temporal qualification in such a case. Chronological proximity may be material where later or similar misconduct would otherwise be propensity evidence, but it does not exclude genuinely motive evidence.

An acquittal of one defendant does not render another defendant’s conviction inconsistent where the acquittal may have rested on a basis which leaves the prosecution case against the convicted defendant intact.

The applicant was convicted at the Central Criminal Court of the murder of Michael Ofori and sentenced to life imprisonment with a minimum term of 28 years, less time spent on remand. The prosecution alleged that the killing was a reprisal within a feud involving earlier shootings, and that those incidents supplied a motive for the murder.

On a renewed application for leave to appeal, the applicant contended that the earlier incidents were inadmissible bad-character evidence and that the acquittal of a co-defendant made his conviction inconsistent. The central issue was whether evidence of the earlier shootings was evidence which had to do with the alleged facts of the murder under section 98 of the CJA 2003.

1. The renewed application for leave to appeal was refused. The trial judge correctly admitted the evidence of the three earlier shooting incidents.

2. Section 98 of the CJA 2003 contains no express or implicit requirement that evidence which is said to have to do with the alleged facts of the offence must be temporally proximate to it. Evidence alleged to establish the motive for the index offence falls within that description. It is therefore outside the statutory definition of bad character.

3. The applicant’s reliance on McNeill [2007] EWCA Crim 2927 and Tirnaveaunu [2007] EWCA Crim 1239 was misplaced. Those cases concerned later or similar misconduct which risked operating merely as propensity evidence. In that context, chronological proximity might be needed to prevent the statutory propensity provisions being circumvented. They did not decide the treatment of evidence relied upon to show motive.

4. The earlier incidents were alleged to have generated the motive for the murder and formed part of a connected pattern of reprisals. They were intrinsic to the prosecution case, rather than merely relevant bad-character evidence. In any event, the four incidents occurred within three months, which would have satisfied a temporal requirement had one existed.

5. The acquittal of Isaacs did not necessarily show that the jury rejected the allegation that Walters was the intended victim. The jury could have been unsure whether Isaacs knew why he had lured Walters to the location. His acquittal was therefore not inconsistent with the applicant’s conviction.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was refused in Sule v R [2012] EWCA Crim 1130 .
• Central Criminal Court: The applicant was convicted of murder on 18 October 2011 and sentenced to life imprisonment with a minimum term of 28 years, less time spent on remand.