R v Damien Dunstuan

Under gateway (f) in the Criminal Justice Act 2003, an accused creates a false impression by an express or implied assertion apt to mislead the court or jury. Previous convictions may be admitted if they have probative value in correcting that impression and go no further than necessary. Care is required where the statement is equivocal, but context may show a deliberate portrayal of the accused as unlikely to participate in violent group offending involving weapons. Differences between the earlier and current offences do not prevent probative value. Admissible evidence may still be excluded under section 78 of the Police and Criminal Evidence Act 1984 where fairness requires. That decision is for the trial judge and includes fairness to the prosecution.

Following a jury trial at Woolwich Crown Court, the appellant was convicted of aggravated burglary contrary to section 10 of the Theft Act 1968 and unlawful wounding contrary to section 20 of the Offences against the Person Act 1861.

The prosecution initially failed to obtain admission of the appellant's 2013 convictions for wounding with intent and possession of a bladed article. After the appellant gave evidence and referred to his children, family and car when denying involvement with crowbars, the trial judge admitted those convictions under gateway (f) of the Criminal Justice Act 2003. The appeal challenged the finding that a false impression had been created, the probative value and necessity of the evidence, and the refusal to exclude it on fairness grounds.

The court dismissed the appeal and held that the convictions were safe.

1. Gateway (f) under the Criminal Justice Act 2003 permits bad-character evidence only where the defendant is responsible for an express or implied assertion apt to give the court or jury a false or misleading impression, the proposed evidence has probative value in correcting it, and the evidence goes no further than necessary. The court also confirmed that the statutory gateway itself contains no exclusion power. The general fairness power under section 78 of the Police and Criminal Evidence Act 1984 remains available.
2. Care is required where an accused's statement is equivocal. In this case, however, the appellant's answers, given after a question about crowbars and accompanied by references to his children, family and car, deliberately created the impression that he was unlikely to participate in violent group offending involving weapons. The answer was not merely an ill-chosen denial or a throwaway remark.
3. The earlier offending differed in detail from the present offences, but its nature had probative value because it contradicted the particular impression created by the appellant. The evidence did not exceed what was necessary to correct that impression. The judge was therefore entitled to admit it.
4. Exclusion under section 78 was a matter for the trial judge's discretion. Fairness to the prosecution as well as the defence had to be considered. The lapse of time did not prevent reliance on serious offending committed when the appellant was a mature adult, particularly where otherwise the jury would have been left with a deliberately created false impression. The judge's decision was properly open to him, and there was no basis for appellate intervention.

The court additionally considered that the circumstantial case against the appellant was strong and rejected the contention that admission of the previous convictions had caused an unsafe conviction.

1. Court of Appeal (Criminal Division): in [2023] EWCA Crim 1632, dismissed the appeal by leave of the single judge and held the convictions safe.
2. Woolwich Crown Court: following a jury trial before His Honour Judge Mann KC, convicted the appellant of aggravated burglary and unlawful wounding and admitted his previous convictions under gateway (f).