No: 9605462 Y3

IN THE COURT OF APPEAL CRIMINAL DIVISION
                          Royal Courts of Justice
                          The Strand
                               London WC2
 
                          Friday 30th January 1998
 
                    B E F O R E:
 
              LORD JUSTICE BUXTON
 
                 MR JUSTICE RIX
 
                         and
 
             RECORDER OF MANCHESTER
          (acting as a judge of the CACD)
 
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                     R E G I N A
 
                        ‑v‑
 
               WARWICK MUNCASTER
 
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Computerised transcript of Smith Bernal Reporting Ltd
        (Official Shorthand Writers to the Court)
            180 Fleet Street, London, EC4A 2HD
         Tel: 0171 404 1400.  Fax:  0171 404 1424
 
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MR L KERSHEN QC appeared on behalf of the Applicant
MISS W JOSEPH appeared on behalf of the Crown
 
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                   J U D G M E N T
           (As Approved by the Court)
 
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                   Crown Copyright 
                               Friday 30th January 1998
 
                      JUDGMENT
 
LORD JUSTICE BUXTON:  Warwick Muncaster was convicted at Southwark Crown Court before His Honour Judge Elfer QC and a jury on 12th July 1996 on three counts of possessing a Class A drug, LSD, with intent to supply. He was sentenced to eight years' imprisonment on each count.  His co‑defendant, a Miss Keith, was found not guilty.  He appeals against that conviction by leave of this Court, that leave having originally been refused by the Single Judge.
      The background to the case was that Mr Muncaster had originally met Miss Keith in New Zealand when the latter was aged 16 and started to work for the appellant.  The appellant moved to England and in 1993 Miss Keith coincidentally came to Europe.  They met in London in 1995 by chance.  Muncaster needed somewhere to live and Keith accommodated him at her flat.  He told Keith to rent a car and she did so, believing that Muncaster would repay her when he received funds from New Zealand.  The car was retained for a number of weeks but not used to any great extent.
      On 19th September 1995 the appellant was driving  the vehicle with a man called Vine, the appellant having consumed a great deal of alcohol.  He had an accident which involved a taxi cab.  The police attended and breathalysed Muncaster, who failed the breath test and was arrested.  He asked the police to obtain his possessions from the glove compartment of the car and to secure the car.  In the car, when they went to do that, the police discovered two sheets of LSD tablets ‑ 454 pills in all ‑ in an envelope in the glove compartment. Muncaster said he had never seen the envelope before. According to the police he went on to agree that it contained drugs saying, "It's my car, I take responsibility".  They also found in the glove compartment a bank card that belonged to Keith.
      Keith was later questioned about the drugs found in the car and said she knew nothing about them.  She was originally intended by the prosecution as a witness for the prosecution, but in due course the envelope was tested for fingerprints and her fingerprints were found on it.  As a result of that discovery she herself was also prosecuted.  She said that her fingerprints were on the envelope because on a previous occasion Muncaster had asked her to go to the car to recover the envelope. The police conducted a search of Miss Keith's premises when they arrested Muncaster, and found 42 further  sheets of LSD tablets wrapped in tin foil and cellophane under a mattress in a bedroom.  Keith was, at that time, abroad.  It was alleged that the room was in fact used from time to time by Muncaster to sleep in.  Some of his possessions were found in the room.
      The appellant was kept in custody and was visited by Keith when she returned from abroad.  She gave evidence that when she visited him in prison he said that there were more drugs in the room, and that the police had not found them all.  She alleged that Muncaster told her to package the drugs carefully and then arrange to meet someone at an underground station in order to hand them over to him.  Keith went to the police at that stage and the matter was investigated by them.
      Apart from the alleged admission that we have referred to when he was originally arrested, and a brief indication that he was not guilty of any charge when he was charged, Muncaster made no further statement to the police and did not give evidence at the trial.
      The prosecution's case at the trial was that both Muncaster and Keith had been in possession of each of the three separate parcels of drugs that we have referred to which form the subject matter of the counts.  The defence was of a cutthroat nature.  Keith  gave evidence at length in that sense.  Further, although Muncaster did not give evidence, in the light of what was unchallenged evidence by Keith and unchallengable evidence from sources other than Keith Muncaster, by his plea, could not be asserting other than that Keith was the only possessor of the drugs.
      We turn to the matters of appeal.  Two complaints are made about the summing‑up.  They are to some extent interrelated, but have to be dealt with separately.  The first is that an incorrect direction was given in relation to Muncaster's character.  The second is that an inadequate direction was given in relation to the way the jury should approach evidence given by Keith that was detrimental to Muncaster.
      We start with the second of these complaints.  In order to put it in context it is necessary to look at the underlying law as to the way in which a judge should direct the jury about evidence.  The basic principle is vested in the trial judge as to how he should sum up the evidence.  As the House of Lords put it in McGreevy v DDP for NI [1973] 1 WLR 276, at page 281F:
"The particular form and style of a summing‑up, provided it contains what must on any view be certain essential elements, must depend not only upon the particular features of a particular case but also upon the view formed by a judge as to the form and style that will be fair and reasonable and helpful." 
      Further, the Court of Appeal, which has not been at the trial and has not heard the witnesses, is not well placed to differ from the judgement of the judge who was at the trial as to the necessary form of the summing‑up, and the Court will not lightly do so.  That said, the Court has given guidance as to how some sorts of testimony should be treated in a summing‑up.  Broadly stated, that guidance can be divided into guidance given as to the treatment of certain types of evidence; and guidance as to the treatment of certain categories of witness.
      It is recognised that certain types of evidence must be the subject of particular directions, broadly expressed in terms approved by the Court of Appeal.  The only types of evidence that appear to fall with certainty into this category are evidence of identification (Turnbull [1977] QB 224); lies told by the defendant (Goodway (1994) 98 Cr.App.R. 11; Burge and Pegg [1996] 1 Cr.App.R. 163); evidence of the accused's character, good or bad; and the evidentiary status of a failure on the part of the defendant to testify (Cowan [1996] 1 Cr.App.R. 1), the directions in the last case being, in any event, imposed by section 35 of the Criminal Justice and Public Order Act 1994.  However, in such cases the judge still has an obligation to tailor  his direction to the facts of the case and, as our decision in this case will demonstrate, a failure to follow the particular relevant guidance will not necessarily make a subsequent conviction unsafe.
      Directions as to particular categories of witness have a different status.  For many years this area of practice was dominated by the corroboration rules. They required, not merely as a matter of discretion but as a matter of law, that in the case of two categories of witness, accomplices and complainants in sexual cases, the judge must address the jury in respect of their evidence in formalised terms.  One of the many objections to that rule was that it was wholly artificial, and inconsistent with the general approach to summing‑up that we have already outlined, to require particular directions to be given about a witness just in case he fell into a particular category, and irrespective of the nature of his actual evidence. Attempts were made, by defendants, to extend the number of categories to which the obligation to give the corroboration direction applied, but those attempts failed:  for instance, in relation to witnesses who were generally suspect or unreliable (Spencer [1987] AC 128); and, significantly for our present case, in relation to the evidence of co‑defendants (Knowlden (1983) 77  Cr.App.R. 94).  However, perhaps with the precedent of the corroboration rules in mind, it was said that in such cases the judge was obliged to advise a jury to proceed cautiously where there was material to suggest that the witnesses' evidence might be tainted (Beck [1982] 1 WLR 461), and to give "the customary clear warning" to look at the evidence of co‑defendants with care (Knowlden, at page 100).
      All of these latter authorities have now to be looked at afresh in the light of two developments: the total abolition of the corroboration rules by section 32 of the Criminal Justice Public Order Act 1994; and the subsequent review of the current position as to warnings about particular categories of witness by the Court presided over by Lord Taylor CJ in Makanjuola [1995] 2 Cr.App.R. 469.
      We would refer to Makanjuola as a well‑known authority, requiring little description from us, were it not that one of its most important rulings was overlooked at the trial in this case.  Whilst the actual issue in Makanjuola was whether, despite the provisions of section 32, trial judges were still obliged as a matter of common law discretion to give corroboration warnings, and in the old artificial terms, the Court, in rejecting that argument and giving guidance for the  future, did not confine itself to the old corroboration categories.  Rather its observations are, in our view, to be read as applying generally to all cases where a witness is or may be suspect because he falls into a particular category.  We agree with the editors of Archbold (1998) paras 16‑19 that that must follow not only from the general language of the decision but, more specifically, from the terms of paragraph (2) of the Court's summary which is set out below; while venturing to suggest that the further concern that the editors express about the effect of Makanjuola upon, for instance, the rules as to identification evidence is met by regarding the case as confined to categories of witness rather than types of evidence, following the distinction made earlier in this judgment.
      That Makanjuola has the wide reach that we have suggested is a matter of common sense. It would be very strange if the categories of witness that were originally set aside as the objects, but the only objects, of the corroboration rules were now subject to a less stringent regime than witnesses, such as co‑defendants, who had been consciously excluded from those rules.  Nor was such an approach inconsistent with previous authority.  It is true that Beck speaks of an "obligation" to give a warning in respect of a suspect  witness, but the case also emphasised that the strength of the advice must vary according to the facts of the case: [1982] 1 WLR at page 469A.  As to co‑defendants, Lord Taylor Chief Justice in Cheema (1994) 98 Cr.App.R. 195 at page 203 described "a warning in suitable terms as to the danger of a co‑accused having an axe to grind" as "desirable", but cited the observation of Watkins LJ in Knowlden at page 100:
"The content of whatever kind of warning or advice is given is best formulated by the trial judge and, although invited to, we decline to introduce through this judgment a formula which trial judges should use no matter what circumstances confront them." 
      We therefore set out the significant parts of the judgment of the Court of Appeal in Makanjuola, reading from page 472D to 473F of the report:
"Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all.  Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution.  In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury.  We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of  assessing the manner of a witness's evidence as well as its content.
 
To summarise:
      (1) Section 32(1) abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories.
      (2) It is a matter for the judge's discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case.  Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.
      (3) In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice.  There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable.  An evidential basis does not include mere suggestions by cross‑examining counsel.
      (4) If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches.
      (5) Where a judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of the evidence and his comments as to how the jury should evaluate it rather than as a set‑piece legal direction.
      (6) Where some warning is required, it will be for the judge to decide the strength and terms of the warning.  It does not have to be invested with the whole florid regime of the old corroboration rules." 
      Paragraph (7) we do not need to read.  Then paragraph (8):
"Finally, this Court will be disinclined to interfere with a trial judge's exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense." 
We turn first to paragraph (4) of that guidance.  In our view, much of the difficulty perceived in the present case, and possibly even the need for it to trouble this Court at all, sprang from the failure of all concerned to observe the guidance there set out.  We understand that there was no discussion with the trial judge either before speeches or before his summing‑up.  We reiterate again, as did the court in Makanjuola, and as has the Court on many other occasions, that in all but the most straightforward cases (a category into which, of necessity, a trial involving cutthroat defences cannot fall) it is incumbent on counsel to take the initiative and address the judge on the matters on which they consider special directions should be given, and discuss the terms of those directions with him.  Often that may lead to an agreed approach.  Even if it does not, counsel can address the jury on a sure basis, and the judge is bound to be assisted in any event in formulating his summing‑up.  We think that if that had been done in this case it is very unlikely that the misdirection complained of under head 1 would have occurred at all.
      So far as the present complaint is concerned ‑ head 2 ‑ we are bound to observe that counsel who represented Muncaster at the trial (not Mr Kershen QC),  trial counsel of whose care of Muncaster's interests no complaint is made in this appeal, did not intervene with the judge at any stage to remind of him of, or enquire as to his proposed direction with regard to, Keith's evidence as it affected his client.  That does not prevent the present complaint being made on appeal.  Nor does it cause us not to take the complaint seriously. We are, however, entitled to observe that that lack of action on counsel's part may be some indication of the extent to which those present at the trial thought that there was a serious need for the jury to receive direction on this point from the judge, over and above what must have been apparent to them as being Muncaster's case in respect of Keith's evidence from Keith's cross‑examination and from Muncaster's counsel's closing speech.
      We turn to what actually occurred at the trial. As we have said, nothing was discussed in relation to the evidence of Keith as co‑defendant before the judge started his summing‑up.  He told the jury that they must consider the case of each defendant separately, but he also said at page 7H to 8C of the transcript:
"You are entitled to take an overview of the evidence for example, of the common ground to which I have already referred, to the fact that the drugs obviously all come from one common supply in each of the counts. To the fact that they had been associating together and are associated in the car, the house and the like, all  that and the overview is something that you will take into account when you are first of all discussing the case, but ultimately when you have decided what you believe, what you are satisfied about, you must ask each of these questions six times: 'Are we sure?'" 
      In dealing with Muncaster's failure to give evidence, in terms of which no separate complaint is made, the judge said this at page 14C of the transcript:
"Members of the jury, as to the evidence of Miss Keith, of course, that bit upon him too.  It becomes evidence in the case.  What she says he did or did not do and, of course, by not going into the witness box he deprived himself of dealing with those matters." 
      This was said before anything was said to the jury about how Miss Keith's evidence should be regarded. There then followed this passage in the absence of the jury, after a short adjournment.  Miss Joseph, prosecuting counsel, said, at page 20H:
".....may I just mention the question of so far as Miss Keith's evidence is evidence against Mr Muncaster, whether the so‑called axe to grind warning should not be given." 
      The judge said:
"Yes, I am coming to it...now."
      Immediately the jury returned, he said to them:
"Members of the jury, we now come to the drugs and Brenda Keith's description of how she came to see them. You are going to have to decide whether you believe her account in the sense that there were any drugs that she saw in Warwick Muncaster's possession at all.  If you say: "We don't believe that" then that is not evidence in your view worthy of consideration against Warwick Muncaster.  If you say that in your view it may be that she was the possessor of the drugs and he was not, then this is simply evidence which one who has an axe to  grind would say, would they not?"
      In the Grounds of Appeal it was contended, on what was said to be authority of Cheema, that:
"2.2. It was incumbent on the Learned Judge to direct the jury:
2.2.1. That there was a special need for caution in such circumstances.
2.2.2. As to the reason for such a need.
2.2.3. With a clear warning that they should examine her evidence with care." 
      That is, that particular words had to be used or particular considerations put before the jury.  In argument it was conceded, on the basis of Makanjuola, and if it was not conceded it is in our view the law, that that submission went too far.  The judge has a wide discretion as to how he should deal with the matter. Counsel however argued that on no view could it be said that the passage we have cited was adequate. It was not sufficiently emphasised in the context of the summing‑up as a whole.  It might appear to be directed only at one piece of Keith's evidence ‑ her evidence as to seeing drugs in Muncaster's possession ‑ and the latter part of it was the wrong way round, in that it appeared to say that if the jury disbelieved Keith they could consider she had an axe to grind, whereas the correct approach was first to consider her self‑interest and then use that to illuminate her truthfulness.
      Counsel made further complaint about Keith's  evidence as to the conversation with Muncaster in prison.  The judge addressed this evidence mainly as evidence that provided the grounds on which Keith herself could be convicted on Count 3.  However, in so doing he also said this at page 50G of the transcript:
"Ladies and gentlemen, I view that account of what took place at Brixton Prison on the basis of the account that Brenda Keith gave you as being the whole truth, of course, it is evidence in the case of Warwick Muncaster." 
      That matter was the subject of an intervention by Muncaster's counsel, who asked the judge to emphasise to the jury that they must be satisfied that the conversation was in the terms that Keith alleged. Counsel said this to the judge at page 64E:
"In my submission, it would be right for the Court to tell the jury, not only would they need to be satisfied that that whispered conversation was about drugs because I conceded in my final address, it is hard to imagine that it could have been about anything else, but that it was about drugs going along the lines that Miss Keith said it was." 
      The judge appeared to agree to take that course, but in the event he did not do so.
      We pause in our discussion of ground two to revert to ground one.  It had become known in the course of Keith's evidence that Muncaster had been convicted of drunken driving in New Zealand.  Keith had mentioned that as part of her explanation of why she did not want Muncaster to drive the car.  Muncaster's counsel raised  no objection to Keith having said that, nor did he seek to address the judge as to how he should deal with the matter in summing‑up. The judge, on that matter, said this at page 14E of the transcript:
"Finally this, members of the jury, you know a little bit about both defendants. You know that Warwick Muncaster has previous convictions for drunken driving in New Zealand.  You take that into account.  You place it in the context of the case and you use it, if you think it is important, when considering his credibility and, certainly, when considering Brenda Keith's assertion that she did not want him to drive.  You know also that Brenda Keith is not totally conviction free, she took a magic mushroom she said sometime ago, she was convicted of smoking cannabis, she escaped by some means and we will have to look at it, at being prosecuted for driving under the influence of alcohol.  Set that side by side with the evidence that you have heard from Mr Vine that she is a naive person who would not ever get involved in criminal activity and an honest person, according to Jill Haggett, that would not in her expectation tell lies to anybody and would not get herself into these sort of scrapes.  It is all evidence which you view in the overall context of how you find in the case of Mr Muncaster, generally.  In the case of Brenda Keith, it is put to you, first of all, she is the sort of person who would never have intentionally given house room to these drugs and...your overall impression when she said that.
 
Secondly, now that you have heard it, taking all the matters into account, if there were moments in the course of her evidence when you said: "I am not quite sure whether she is telling the truth or not", then into the balance goes what you have heard about her and, in particular, the observations of Mr Vine and Miss Haggett, if you think it right to put it into the balance in her favour." 
      It will be remembered, of course, that Keith was herself a defendant in this case and not merely a witness. 
      The first part of this direction is acknowledged to be defective.  The judge did not warn the jury that they should not infer guilt from bad character, and appeared to tell them that they must, not could, take the previous conviction into account.  Indeed, as Miss Joseph for the prosecution pointed out before us, the one matter that the judge did address in relation to character and credibility was irrelevant in this case, because Muncaster had neither given evidence nor answered questions in interview.
      Nevertheless, we consider that these errors cannot have had the effect of rendering the conviction unsafe. An important part of the unchallenged history leading up to the finding of the first parcel of drugs was Muncaster's arrest for drunken driving in England.  We agree with Miss Joseph that it is very hard to think that the fact that he had been similarly convicted in New Zealand would have much added effect on the jury's mind.
      Mr Kershen, while by no means abandoning this point, did not put it at the forefront of his argument. He said, however, that the real vice was the way in which the judge went on in the passage we have already read, as it were, to make a comparison between Muncaster and Keith, without having yet warned the jury of the  need for caution in respect of the evidence of Keith when it affected Muncaster.  That, he said, made the need for such a warning the more pressing, and reinforced the argument under ground two that the warning, when given, was inadequate.
      We have carefully considered all these arguments in respect of ground two, powerfully as they were put by Mr Kershen.  The judge did accept that a warning was required.  It would have been better, as we have said, if the terms of the warning had been discussed with him.  We further think that it is perhaps unfortunate that this issue is conventionally discussed, as it was in this case, under the shorthand term of "axe to grind", however much that phrase is used in the cases. Use of such a term without more in exchanges between judge and counsel may lead both parties to think that they have the same detailed directions in mind when in truth that may not be the case.
      Mr Kershen, addressing the very limited ability of this Court to interfere once a warning in some terms has been given, as set out in Makanjuola, submitted to us, as perhaps he had to, that in truth the judge in this case had not exercised his discretion at all as to what he should say, but simply, and in a muddled way, made a reference to Keith's position.  We cannot agree.  It  would, of course, have been open to the judge to say more, or in different terms.  There is, however, no reason to think that the judge did not have in mind the necessary terms and extent of the reminder to the jury in the context of the trial as a whole.  We have also been careful to warn ourselves against making too rigorous or pedantic an approach to the exact words used by the judge in any such situation.
      We say all these things with the more confidence because the judge was far from inviting the jury to accept without question Miss Keith's evidence generally.  Immediately after the passage with which we have just been dealing, for instance, he said this at page 21E:
"Secondly, you have to ask yourselves, as you remind yourselves of this part of the evidence, if you accept what she is saying, is it the whole truth or was there more that actually went on in your judgement?" 
      In the passage we have cited with regard to Muncaster's conviction, he reminded the jury of matters unfavourable to Keith: not least, in the context of a drugs charge, that she had been involved in substance abuse and been convicted of smoking cannabis.  Further, since Muncaster had not given evidence, the judge's summing‑up was largely directed at the evidence of Keith.  His treatment of that evidence in the summing‑up  led to a complaint by Keith's counsel at the end of it that the judge had put an unreasonably unfavourable view of his own client before the jury.
      We also have to look at the matter in the context of the trial as a whole.  We think it must have been wholly apparent to the jury that Keith's evidence had to be looked at with care so far as it affected Muncaster, without there necessarily being any direction in that sense from the judge.  Counsel for the prosecution told us that, no doubt understandably, Keith was rigorously cross‑examined in that sense, and while we do not know the exact terms of Muncaster's counsel's closing speech, we would be surprised if the point had not been made there with great force.  Those considerations may not absolve the judge from saying something to the jury about the matter, but where what he says is not a technical direction of law but merely an observation of commonsense, the extent and detail in which he needs to go into the matter is very much a question for him, as we consider the case of Makanjuola to hold.
      Finally, we have been exercised by the impact on these issues of the fact that Muncaster did not himself give evidence.  That meant that there was nothing before the jury to rebut the account given by Keith.  For example, her account of the prison conversation, if  untrue, clearly called for a reply by Muncaster, and not just for an attack on Keith's motives by Muncaster's counsel.  We cannot, however, see, and it is right to record that Mr Kershen did not argue, that that can put Muncaster in a better position, so far as complaining about the direction as to his co‑accused's evidence is concerned, than he would be in had he given evidence. Rather, we think that the intensive, and hostile, attention that was paid to Keith's evidence, and the comparative lack of material provided by Muncaster on which he might be attacked, further reinforces the conclusion that fairness and balance did not require the judge to say more than he did.
      We would not rely on that point standing by itself, but we think that we can take it into account, in doing the best that we can to assess the complaints before us in the context of the trial as a whole.  In the event, therefore, this appeal is dismissed.