No: 201100318 D4 
Neutral Citation Number: [2011] EWCA Crim 2087
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 28th July 2011

B e f o r e:

LORD JUSTICE MOORE‑BICK 

MR JUSTICE MACKAY 
 
RECORDER OF NOTTINGHAM
HIS HONOUR JUDGE MICHAEL STOKES QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

JASON ANTHONY CARTY
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Miss S Clark appeared on behalf of the Applicant
Mr C Ward‑Jackson appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE MACKAY:  This is a referred application for permission to appeal against conviction by Jason Carty, who appeared at the Crown Court at Reading and, on 29th November 2010, was convicted of two offences of conspiracy to supply a controlled drug of Class A; count 1 relating to a quantity of cocaine, count 2, a quantity of MDMA.  Standing trial with him were three other people.  Charlene Casey was convicted of the same two counts as was the applicant.  There was also Bobbie Faulkner and Lee Runham, who were both acquitted of both counts.
2.	On 15th May 2009 police officers had occasion to stop a Vauxhall Astra car which belonged to the applicant.  The applicant was not in the car which was being driven by the co‑accused Runham and the passenger was Faulkner.  There was no insurance on the car and the police who stopped it exercised their powers to seize it.  Three days later it was searched, and in the sunglasses holder above the driver's door were two wraps of MDMA and two wraps of cocaine.  In a bag in the boot were £6,840 in cash, together with a note book of telephone numbers, names and amounts of cash.  The items in the boot were linked to the applicant and the co‑defendant Casey.  A further search two days later with a sniffer dog found concealed in the handbrake covering a black pouch containing 12 wraps and a clingfilm package of cocaine.  There was then a search of the house which the applicant shared with the co‑accused Casey, where there were found expensive consumer goods, evidence of expensive holidays and largish amounts of cash going through the bank accounts of the two occupants.  Another Vauxhall Astra stood outside, to which Casey held the keys, and in the handbrake housing of that was a pouch containing a single wrap of MDMA.  
3.	The prosecution's case was simple: it was the applicant's car, they were his drugs.  The defence case of the applicant was that he had nothing to do with them, the drugs must have been put there by Runham, and that the money that he had in the boot was from legitimate sources.  He said he had business interests in underground music, in copying tapes of artists, working in clubs and mixing tapes as an MC, and the various lists and documents related to transactions relating to those activities.  He called a number of witnesses to confirm that they had had contact with him in his, what might be called, professional connections.  So the issue for the jury was who had put the drugs in the car.
4.	The applicant, as we say, gave evidence after the close of the prosecution case, and he was followed by the co‑accused Casey and the defence supporting witnesses.  On 25th November, the trial having started on the 17th, the fourth defendant, Runham, gave evidence (the third defendant having elected not to give evidence) and his case was simply that he had borrowed the car from the applicant, who was an old friend of his, his own car was out of action.  He wanted to take his children swimming the following day, and in due course there was an admission that they did indeed attend a relevant swimming centre on that occasion.  He saw the drugs when he was in the car and they must have been there when he got into it.  Faulkner had touched some of the drugs, which accounted for the fingerprints of Faulkner on two of the wraps found in the handbrake cowling, and Runham's only involvement was to tell him to put them under the handbrake cowling to keep them out of the way of his children.  
5.	After he had given evidence he called Mrs Fiona Cook, who was related to him by marriage.  Her evidence went some way to reinforce the evidence that Runham had given as to the reasons why he had the car on that occasion, the reasons he was in it when he was in it and the time period for which he would have been in the car that evening, which was a very short period and therefore inconsistent with any drug dealing activity.
6.	It is now common ground that, unknown to counsel for the appellant (Miss Clark did not represent the applicant at trial), the witness Fiona Cook was in the public gallery and stayed in the public gallery while the Crown opened its case and the first three police officers gave evidence, all on 17th November, the first day of the trial.  The officers' evidence merely recited the bare facts relating to the stopping of the car and did not extend to the subsequent searching of it.  This evidence was entirely uncontentious and in due course found its way into the first two of the 16 admissions of fact placed before the jury.  
7.	As to what the opening said, there is no note of it.  We have the assistance of Mr Ward‑Jackson today, who was trial prosecution counsel.  He tells us that his recollection is that it was essentially a chronological opening.  He would have alluded in the course of it to what Runham had said when interviewed following his arrest, which was essentially the same as the evidence he was later to give in court.
8.	Runham's then counsel noticed that the witness was in court and told her to leave court and not go back to it prior to giving her evidence, but did not think it necessary to alert any other counsel as to what had happened.  The defence were therefore not aware until after the guilty verdicts were returned.
9.	The single ground of this appeal, put forward with clarity by Miss Clark, is this.  There is a real risk that Fiona Cook might have gained an insight into how the case was being put by the prosecution and by her relative Mr Runham by virtue of having heard the Crown open the case.  That might, she argues, have alerted her to features of Runham's case of which she had been previously unaware and which would have enabled her to tailor her evidence accordingly.  
10.	Miss Clark accepts that there is no rule of law excluding a factual witness from a trial prior to giving evidence, though all accept, as we do, that it is good practice for witnesses to be excluded in the normal course of things.  If authority was needed there is the case of R v Briggs (1930) 22 Cr App R 68, which appears to agree with the proposition that the court had no discretion to exclude a defence witness who was potentially helpful to the defence case who had mistakenly sat in court prior to giving evidence.  There is a discussion at paragraph 8‑22 of the current edition of Archbold which suggests that that still remains the case, though it is argued that PACE section 78 might operate so as to give the court a discretion to exclude such a witness, if a prosecution witness, if the witness' earlier presence in court might lead to the creation of an adverse effect on the fairness of the trial.  That does not apply, of course, to a witness called by a co‑accused.
11.	Even had there been a discretion in the court to exclude the evidence of this witness, we cannot imagine any basis on which the judge could have exercised it.  In any event, we are satisfied that while it remains good practice for a factual witness who is intended to be called to remain out of court before giving evidence, had the co‑defendant's counsel notified this applicant's counsel of what had happened, his counsel could have cross‑examined the witness, we cannot think of any basis on which that could have been done to any effect in this case.  Her evidence appears to have been freestanding and unrelated to, and therefore not capable of being influenced by, the evidence of any other witness in the case apart from that of Mr Runham, the details of whose evidence she never heard.  There is in, our judgment, no reason to believe that this conviction was or might have been rendered unsafe by virtue of what happened in this trial and therefore this referred application must be refused.