Ngando, R. v

Previous convictions for robbery which include limited violence may be relevant to the issue of coincidence where a defendant alleges mistaken identification. They must not, without sufficient similarity, be used to infer a propensity to commit violence of the particular kind charged.

Admission for the limited coincidence purpose requires clear directions as to its proper use and that it cannot be the sole or main basis for conviction. An appellate court will not interfere with the trial judge’s ruling unless there was a misdirection or the ruling was plainly wrong. In any event, a conviction remains safe where the other evidence leaves no real doubt of guilt.

The appellant was convicted in the Crown Court at Wood Green of section 18 wounding with intent after the complainant was struck and stabbed with a broken bottle. Two witnesses identified him, and his DNA was found on the bottle. The appellant accepted that he had attended the party but alleged mistaken identity.

The prosecution was permitted to adduce three earlier robbery convictions as bad-character evidence. The judge directed the jury to consider them, if at all, on the issue of coincidence rather than as proof that the appellant was likely to use violence of the kind charged. The appellant appealed against that ruling and against a sentence of ten years’ detention in a young offender institution. The central issues were whether the convictions were admissible and whether the sentence reflected an erroneous assessment of culpability.

1. The appeals against conviction and sentence were dismissed.

2. The earlier robbery convictions could not properly support an inference that the appellant had a propensity to use violence of the particular kind involved in this attack. Their violence and circumstances were insufficiently similar.

3. However, the trial judge was entitled to admit the convictions for the limited purpose of coincidence. They had some relevance to the appellant’s contention that he had, by chance, been wrongly identified by two witnesses. The judge gave careful directions which confined that use and made clear that the convictions could not be the sole or main basis for guilt.

4. The identification and prosecution case were not weak. Two witnesses had identified the appellant; he admitted being at the scene; and DNA on the broken bottle provided powerful independent evidence. Applying the appellate approach stated in R v Hanson [2005] Cr App R 21, the trial judge neither misdirected himself nor reached a plainly wrong decision.

5. Alternatively, even if the bad-character evidence had been wrongly admitted, the conviction was safe. The admitted presence, DNA evidence, bottle evidence and two identifications left no real doubt about guilt.

6. The sentence was proper. The unprovoked use of a broken bottle caused life-threatening and lasting injury. Lack of premeditation and the fact that the bottle was not inherently an offensive weapon did not prevent the offence from being one of higher culpability. Proper credit had been given for the appellant’s age.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence, by leave of the single judge.

• Crown Court at Wood Green: convicted the appellant of section 18 wounding with intent and sentenced him to ten years’ detention in a young offender institution.