O'Leary v R

In a multi-count indictment, admissible evidence relating to one count may be used when deciding another count where it is relevant, even though the jury has not first found the defendant guilty on the first count. The jury must still reach a separate verdict on each count. Evidence that vulnerable victims were deliberately selected may be relevant to dishonesty as evidence of a pattern of conduct, rather than solely as propensity evidence.

An unqualified disclosure that a witness lacked legal capability to make a statement may improperly affect the jury’s factual assessment. A conviction will nevertheless remain safe where the error could not realistically have affected the verdict. A previous conviction is not conclusive proof of guilt: under Police and Criminal Evidence Act 1984, the defendant may prove the contrary.

The appellant was convicted at Wood Green Crown Court of fraud by false representation against a 91-year-old woman and of two thefts from a 90-year-old man. The prosecution alleged that he exploited the victims’ dementia to obtain money. He denied dishonesty and claimed that both victims understood the building transactions.

At trial, the judge permitted cross-admissible use of the evidence on the separate counts. He also informed the jury that the male complainant had lacked capability to make an admissible witness statement. The prosecution was permitted to call rebuttal evidence after the appellant alleged a conspiracy by the police and Crown Prosecution Service to keep both complainants from court.

The appellant appealed against conviction and against an aggregate sentence of six years’ imprisonment, followed by four weeks activated from a suspended sentence order. The central issues were the propriety and effect of the directions and rebuttal evidence, and whether the sentences were wrong in principle or manifestly excessive.

1. Appeals dismissed. The convictions were safe and the total sentence of six years and four weeks was neither wrong in principle nor manifestly excessive.

2. The judge correctly allowed the jury to consider the circumstances of the dealings with each complainant when deciding the other counts. Applying the guidance in Freeman and Crawford [2008] EWCA Crim 1863, cross-admissible evidence need not be withheld until the jury is sure of guilt on one count. It was relevant because it was capable of showing that the appellant deliberately selected two unconnected, cognitively impaired elderly people. The judge correctly required the jury to be sure that the evidence disclosed a pattern of conduct; coincidence alone was insufficient.

3. The Recorder erred by telling the jury, without a sufficiently clear qualification, that the male complainant lacked capability to make an admissible statement. That ruling risked influencing the jury’s distinct factual assessment of his ability to transact business at the relevant time. The error did not render the verdicts unsafe. The evidence of dementia and its effect was overwhelming, and the appellant’s later allegation of a conspiracy made it fair to permit the prosecution to answer it with rebuttal evidence.

4. The direction that the attempted-burglary conviction was irrevocable proof of guilt was also erroneous. Under section 74(3) of the Police and Criminal Evidence Act 1984, a convicted defendant is taken to have committed the offence unless the contrary is proved. On the evidence, there was no realistic prospect that the jury would have accepted the appellant’s assertion that he had been wrongly convicted.

5. The sentencing judge was entitled to treat the repeated exploitation of severely demented victims, offending while on bail and in breach of a suspended sentence order, prior dishonesty, persistence and intimidation as grave aggravating features. Consecutive sentences and consecutive activation of the suspended sentence order were justified by the total criminality.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction and sentence: [2013] EWCA Crim 1371.

• Crown Court at Wood Green: The appellant was convicted of fraud by false representation and two thefts. He received four years for fraud and concurrent two-year terms for theft, consecutive to the fraud sentence, with four weeks of a suspended sentence order activated consecutively.