Ngoie v R

A judicial correction of defence counsel’s account of evidence should be qualified where the evidence supports counsel’s formulation. The judge may nevertheless direct the jury to assess the significance of the point in the context of all the evidence.

A conviction is not unsafe merely because the judge declined to make that qualification. The appellate court must assess the alleged error’s practical effect. Where it concerns a very minor point, the jury had the best evidence in video footage, and the remaining case is strong, the conviction remains safe.

The appellant was convicted in the Crown Court at Harrow of possessing heroin and crack cocaine with intent to supply. He was sentenced to five and a half years’ imprisonment.

The prosecution alleged a joint enterprise to supply drugs involving the appellant and two co-defendants in a parked car. Drugs and money were recovered from the car and the co-defendants. A telephone beside the appellant contained a message indicative of drug supply and the number of his probation officer.

On appeal, the appellant contended that the trial judge incorrectly criticised defence counsel’s submission that any interaction with two pedestrians was through the front passenger window, and failed to correct that criticism. The issue was whether that matter rendered the convictions unsafe.

1. Appeal dismissed. The court held that the judge had been unwise to decline to qualify his criticism of defence counsel’s closing speech. Counsel had accurately relied on evidence that referred to the front passenger window, and had responsibly checked the recording before raising the matter.

2. The preferable course would have been for the judge either to check the recording or to accept that the evidence had been given. He could then have directed the jury to decide whether the distinction between the front and rear windows had significance, having regard to the officer’s viewpoint and to the body-worn video footage.

3. The error was, however, minor. Defence counsel had legitimately chosen to emphasise one aspect of the evidence, but the video footage was the best evidence of the pedestrians’ position. It supported the inference that they stood side-by-side beside the nearside of the car and facing both open passenger windows. The jury could also conclude that the rear window had been open throughout.

4. Assessed against the whole case, the point could not render the convictions unsafe. The evidence connecting the appellant with the joint enterprise was otherwise strong, including the drugs, the circumstances at the car, and the telephone beside him containing a message indicative of drug supply and his probation officer’s contact. The court considered it inconceivable that a qualification of the judge’s comment would have affected the jury’s verdict.

• Court of Appeal (Criminal Division): appeal against conviction dismissed on 27 February 2020; reasons given in [2020] EWCA Crim 292.
• Crown Court at Harrow: the appellant was convicted on 14 June 2019 of two offences of possessing Class A drugs with intent to supply and, on 21 June 2019, sentenced to five and a half years’ imprisonment.