Bogdanovic, R. v

Factual and Procedural Background

This is an appeal against conviction brought with limited leave. The Appellant, aged 55, was convicted on 19 December 2018 at the Crown Court before Judge Lodder QC on two counts: involvement in supplying a Class A controlled drug contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and possession of criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. The Appellant had earlier pleaded guilty to failing without good cause to provide a non-intimate sample for drug testing while in police detention, contrary to section 63B(8) of the Police and Criminal Evidence Act 1984. The Appellant received an overall sentence of 12 years' imprisonment, and leave to appeal was refused on a renewed application earlier in the year.

The Appellant's co-accused, Defendant, pleaded guilty to the same first two offences and received a sentence of 4 years and 8 months' imprisonment.

The appeal raises three grounds: (1) whether the Judge erred in refusing to admit bad character evidence relating to the Defendant; (2) whether a comment made by the Judge in the route to verdict document provided to the jury was improper; and (3) whether the Judge erred in responding to a jury question concerning the standard of proof. The overarching question is whether these matters, individually or cumulatively, render the Appellant's convictions unsafe.

The facts arise from a police stop and search of a van driven by Defendant on 27 March 2018, in which the Appellant was a front passenger. Police found a large sum of cash (30,060) concealed in distinctive "Aroma" paper bags, and a package containing 999 grams of cocaine of 90% purity under the driver's seat. Both men were arrested on suspicion of money laundering and possession with intent to supply. The Appellant denied knowledge of the cash and cocaine, claiming he intended to purchase a small amount of cocaine for personal use. The prosecution relied on Defendant's guilty pleas, CCTV footage, text messages, and other evidence to assert the Appellant was in possession of the money and involved in the supply.

Legal Issues Presented

1. Whether the Judge erred in refusing to admit bad character evidence concerning the Defendant.
2. Whether the Judge's comment in the route to verdict document improperly introduced a new prosecution case element.
3. Whether the Judge erred in responding to the jury's question about the standard of proof without consulting counsel and giving an inadequate direction.
4. Whether the cumulative effect of these issues renders the Appellant's convictions unsafe.

Arguments of the Parties

Appellant's Arguments

• The Judge wrongly excluded bad character evidence relating to Defendant's previous alleged involvement in transferring large sums of cash, which was relevant to whether the money found in the van belonged to the Appellant or Defendant.
• The bad character evidence would have supported the defence case that the Appellant was merely a customer and that the larger sum of money related to separate transactions involving Defendant.
• The Judge failed to properly consider the statutory criteria under section 100(3) of the Criminal Justice Act 2003 and gave inadequate reasons for excluding the evidence.
• The Judge erred in including a comment in the route to verdict document suggesting the 500 cash was payment for Defendant delivering the cocaine, which was not part of the prosecution case and undermined the defence.
• The Judge erred in answering the jury's question on the standard of proof without consulting counsel and failed to adequately explain the concept of reasonable doubt, thus potentially confusing the jury.
• Overall, these errors individually and cumulatively render the convictions unsafe.

Respondent's Arguments

• The Judge correctly excluded the bad character evidence as it lacked substantial probative value and involved separate factual matters with no evidence of drug involvement or charges against Defendant.
• The jury was already aware that Defendant pleaded guilty and was the police target; the evidence would have invited speculation and satellite litigation.
• The comment in the route to verdict did not alter the prosecution case, which was that the full sum was payment for cocaine and delivery; the defence had opportunity to respond.
• The Judge's answer to the jury question on standard of proof was accurate and adequate, consistent with established guidance, and no particular form of words is required.
• The strength of the evidence against the Appellant was overwhelming, and these matters would not have affected the verdict.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the admissibility of the bad character evidence under section 100 of the Criminal Justice Act 2003, which permits evidence of bad character of a non-defendant only if it is important explanatory evidence or has substantial probative value on a matter in issue of substantial importance.

The Court agreed with the Judge's conclusion that the bad character evidence was not important explanatory evidence, a point not pressed on appeal. The key issue was whether the evidence had substantial probative value regarding whether the Appellant or Defendant brought the 30,060 into the van.

The Court acknowledged that while the bad character evidence could lend some weight to the defence case, the Judge was entitled to find it lacked substantive probative value. The jury already knew Defendant pleaded guilty and was the police target, and the evidence did not materially undermine the prosecution case.

The Court noted the limited and disputed nature of the evidence concerning the prior alleged transfers of cash by Defendant, the absence of drug involvement in those transactions, and the risk of diverting the jury into complex and separate factual matters (satellite litigation) if the evidence were admitted.

Further, the Court found the overwhelming inference from the evidence was that the Appellant brought both sums of money into the van, given the short time between his entry and the search and the manner in which the money was packaged. The Appellant's silence in interview and other evidence supported the prosecution case.

Regarding the second ground, the Court found the Judge's comment in the route to verdict was an available position consistent with the prosecution case and did not rewrite it. The defence had opportunity to respond, and the comment did not render the convictions unsafe.

Concerning the third ground, the Court held that although the Judge should have consulted counsel before answering the jury's question, the direction given was substantively correct, consistent with established case law and guidance, and adequately addressed the jury's concerns about the standard of proof.

Holding and Implications

The Court DISMISSED the appeal.

The convictions of the Appellant are upheld. The Court found no error in the Judge's refusal to admit the bad character evidence, no unfairness in the route to verdict comment, and no substantive error in the jury direction on the standard of proof. The decision confirms the importance of careful assessment of bad character evidence under statutory criteria and the need to avoid undue complexity or distraction in trials. No new precedent was established, and the direct effect is the maintenance of the Appellant's conviction and sentence.