Factual and Procedural Background
The Applicant was convicted following a jury trial in the Crown Court at The City of conspiracy to commit theft. The prosecution alleged that the Applicant participated in a conspiracy to steal asphalt from Company A, involving three employees of Company A. [1][2][3]
The Applicant was a director of Company B, which used asphalt in its fibre-optics contracting business. Although Company B purchased asphalt through authorised channels, substantial payments were also made from Company B’s account, and from the Applicant’s personal account, directly to the three employees. [4][5][6]
The Applicant maintained that he believed the employees were authorised to sell asphalt at a discount and that the payments were ultimately being made to Company A. [7]
The Applicant sought leave to appeal against conviction on three grounds. The application was referred to the full court by the Registrar. [1][8]
Legal Issues Presented
- Whether the trial judge improperly intervened concerning same-day payments to the three employees and thereby prejudiced the Applicant. [8]
- Whether the judge gave an improper direction that undermined the burden of proof. [9][10]
- Whether the judge’s summing-up was unfairly weighted in favour of the Crown. [11]
Arguments of the Parties
Applicant's Arguments
- The judge improperly entered the arena by raising the same-day payments and recalling the Applicant after the evidence had apparently concluded. [12][8]
- The timing and nature of the intervention allegedly conveyed to the jury that the judge was sceptical of the Applicant’s account. [8]
- The judge allegedly criticised the Applicant for failing to obtain invoices from the liquidator and thereby undermined the burden of proof. [9][10]
- The summing-up was alleged to have been unfairly weighted in favour of the Crown. [11]
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court rejected the first ground. The payment schedule was already in evidence, and the same-day payments to all three employees were relevant to the issue whether the money was genuinely being paid to Company A. The judge was entitled to comment on the schedule and the inferences arising from it in the summing-up. [13]
The court considered that recalling the Applicant was fair rather than prejudicial because it gave him an opportunity, which he was not obliged to accept, to explain the split payments. He explained that he had not known about them and had not made them. The credibility of that explanation was for the jury. [14]
The judge’s summing-up fairly identified the issue, gave examples of same-day payments, and accurately summarised the Applicant’s explanation that the payments had been made by other persons involved in Company B. [15][16]
The court also rejected the second ground. Its review of the transcript showed that the judge had not criticised the Applicant for failing to obtain documents from the liquidator. The judge had instead responded to criticism that the prosecution had not approached the liquidator, observing that the prosecution had no reason to believe the documents existed before the Applicant mentioned them in evidence. [17][18][19]
The jury had been properly directed on the burden and standard of proof, the need to disregard any apparent judicial view with which they did not agree, the potential disadvantage caused by the passage of time, and the legal consequences of failing to mention facts relied upon in the defence. [17]
The court found that the Applicant’s evidence and explanation for not mentioning the alleged invoices or dockets earlier had been accurately and fairly summarised. The judge’s comments did not reverse the burden of proof. [19][11]
The third ground also failed. Having reviewed the summing-up, the court considered it even-handed and proportionate to the volume of evidence. [20]
Holding and Implications
Leave to appeal was refused. None of the proposed grounds had a real prospect of success, and the court was satisfied that the conviction was safe. [21]
The direct effect was that the Applicant’s conviction remained undisturbed. No broader implications or new precedent were identified in the opinion.