Case No: 201105425 D3
Neutral Citation Number: [2012] EWCA Crim 1187
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CAMBRIDGE
His Honour Judge Bate
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/06/2012
Before :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE MADDISON
and
THE RECORDER OF PRESTON
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Between :

	JASDEEP SANDHU	Appellant	
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	THE QUEEN	Respondent	

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John Bromley-Davenport QC and John Davis for the Appellant
Simon Wilshire for the Prosecution
Hearing date : 22 May 2012
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Judgment
Lord Justice Stanley Burnton : 
Introduction
1.	On 1st September 2011 in the Crown Court at Cambridge before His Honour Judge Bate Jasdeep Sandhu was convicted of possession of a class A drug, namely cocaine, with intent to supply. On 6th October 2011, before the same judge, he was sentenced to five years imprisonment, with a direction under s240/240A Criminal Justice Act 2003 that 279 days should count towards sentence. The single judge referred to the Full Court his applications for leave to appeal against his conviction and his sentence. On 22 May 2012 we heard his applications. Having heard full argument, we granted leave to appeal against conviction, but dismissed his appeal; we refused leave to appeal against sentence. We said that we would give our reasons for our decisions in writing, and we now do so.
The facts
2.	On 25 February 2010 at about 6pm the appellant was stopped by the police as he drove his father’s Mercedes C180 on the A505 from Hitchin towards Letchworth. The vehicle was searched, and three blocks of cocaine were found in a Sainsbury’s carrier bag under the driver’s seat. The drugs were within various wrappings: cling film, a brown McDonalds’ bag, a Tesco’s carrier bag, and finally the Sainsbury’s bag.  
3.	A search was then carried out in the appellant’s bedroom and his home address. £6110 in cash was found under a pile of clothes in his wardrobe.
4.	The appellant made no comment in interview.  
5.	On forensic examination later, a ridge detail from the appellant’s right ring finger was found on the Sainsbury’s carrier bag. It was also found that each of the three blocks was made up of 126g of off-white powder, containing approximately 15% cocaine. The total weight of powder was therefore 378g, of which 15% was cocaine. It was valued at between £7,500 - £15,000 wholesale, and between £15,000-£22,000 retail.
6.	Two phones, a Nokia and a Blackberry, were also seized from the appellant on arrest. These were examined on 14 April 2011, and the results disclosed on Friday 19 August 2011. The trial began on Monday 22 August 2011. The Crown relied on 11 text messages sent on the 24 and 25 February between the appellant and three of his contacts, “Lid,” “Dil,” and “Joe” using the Nokia. The text exchange with “Joe” on 24 February included a reference to “bag(ging) up to knock money off” and the exchange with “Dil” on 25 February referred to “getting reload today, rather pay cash for all of it”. The three texts sent by “Lid” between 6.34pm and 6.37pm, just after the appellant’s arrest, were: “Ring me;” “Asap” and “You need to ring me, my geezer’s waiting.
7.	The prosecution case was that the appellant was knowingly in possession of the drugs, intending to supply them to someone else. The texts evidenced an intention to supply, as did the cash. 
8.	The defence case was that the appellant had no idea that the drugs were in the car. The cash was all from legitimate sources and for legitimate purposes, and the texts had an innocent explanation.
9.	The appellant gave evidence that in February 2010 he was aged 19, living at home and in the second year of a BSc in Sports and Exercise Science at the University of Hertford. He used to drive his father’s car between home and the campus. He helped out in his parents’ fish and chip shop, earning £6000 a year, in the two tax years 2009-11. His parents and grandmother were generous to him and he had no financial anxieties. His parents were away in India between 9 and 23 February, during which period he looked after the shop.
10.	On 12 February, he had bought a Nokia mobile phone for £50 (NW/2) because his father paid for the Blackberry (and saw the bills), and he sometimes went over the tariff limit - so partly out of respect for his father, but also for privacy in contacting his friends. 
11.	While his parents were away, he continued to use his father’s car, both to go to college and to “cruise around” in the evenings. He gave lifts to many people. People had left items in the car before. He was not responsible for tidying the car; his father used to have it cleaned every 2-3 weeks. As to the fingerprint, he often bought chicken from the rotisserie at Sainsbury’s in Letchworth, and would eat it on the way home, leaving the bag in the car until it was next cleaned.
12.	The cash in the wardrobe was from a variety of sources. Before his parents left, his mother gave him £1000 in case of emergencies. The wardrobe “was the last place any burglar would look”. There was also part of the takings from the shop, amounting to about £3610, which his father had told him not to bank as he needed to pay a VAT bill on his return. On 25 February, he had withdrawn £1500 from his account at the Halifax as part of a re-imbursement to his mother of £1610, for the next instalment of his university fees.
13.	In relation to the texts, the appellant said that his text exchange on 25 February with his friend “Dil” was to retrieve £500 of his parent’s cash (the £1000) he had lent him in a snooker club on 20 or 21st February, and which he had to retrieve to return to them. His text exchange with “Joe” was about building a fence that Joe was going to do to recompense the appellant’s father for breaking two of his collection of whiskies at a small party at the appellant’s house on 22 February. 
14.	On 25 February, the appellant went to university in the morning and then returned home. In the afternoon he went to the Halifax in Letchworth and withdrew £1500 for his university fees, which he put in the wardrobe. Just after 2 pm, he texted Dil about returning the £500 he had borrowed, and about 3 pm he drove to Dil’s address in Hitchin to retrieve the money, and then went onto the gym in Letchworth, where he was until about 4-4.30 pm. He then went to Tyler’s hairdressers in Hitchin for a haircut and then drove back towards home on the A505. He was stopped by the police just outside Letchworth at around 6pm. “To his knowledge, so far as he could recall,” no-one had been in his car that day.
15.	In cross-examination, the appellant said initially that he could not remember whether anyone else was in his car on the 25th: he could only recall his movements. He may well have spoken to ‘Lid’ or Anthony Lidder, his “best mate” that day – there were three texts from him after the appellant’s arrest – and may even have seen him or planned to meet him. He couldn’t recall. 
16.	At this stage in cross-examination, prosecution counsel then produced some documents and showed them to the appellant “to assist him”.  The appellant then said that (after he left the hairdressers) he may have crossed the A505 and gone into a residential area, into a Kingswood Rd, where he stopped to have a smoke outside the car. A jeep approached driven by a man who “may have been Lidder” who asked him what he was up to and if he could have a cigarette. The man went into the car to get the packet of cigarettes, and then sped off in a rush. The man had not put drugs under his seat; it was an innocent encounter.  It was suggested in the defence speech that this was when the drugs were put into the car without the appellant’s knowledge.
17.	After this, the appellant turned left onto Willan Rd and at the junction with Purwell Lane – at, it was suggested 5.47pm – and someone else got into the front passenger seat of the car. It was a friend but he could not remember who; they had a brief chat while the appellant drove back in a loop towards Kingswood Avenue. The man got out and the appellant drove off on the A505 and was stopped a few minutes later. He had not been able to recall his movements until the documents were shown to him; it was a long time ago.
18.	He had become recently aware that some of the people to whom he had given lifts had later been convicted in relation to Class A drugs: Qipa Lal, Joshua McDonald and Christopher Collins. He could not remember the detail; 18 months was a long time, and he had been on medication. He couldn’t remember anyone calling him to retrieve a bag or that the car had been interfered with [i.e., in an attempt to retrieve drugs left there].
19.	In relation to the text exchange with Joe, “bagging” and “cutting” referred to bagging up rubble, and cutting footings for the holes for the fence, not to bagging and cutting drugs.
20.	In relation to the text exchange with Dil, “I’m getting reload today” this did not refer to drugs; he was saying that he was stocking up on something he needed to pay for that day. He was trying to convey that he needed the money urgently. The appellant also maintained his innocent account of the other texts in the exchange. In relation to the texts from ‘Lid’ between 6.34 and 6.37, he agreed that ‘Lid’ seemed to be trying to contact him urgently.
21.	Pritpal and Rupinder Sandhu, the appellant’s parents, also gave evidence as to his background, and that they had returned from India with unspent cash – variously put at £2,400 and £3000. Pritpal Sandhu gave evidence that, on his return from India, he had paid this unspent cash into the fish and chip shop’s business account, and that he had wanted cash for the VAT bill. The appellant had told him that Joe had broken the whiskey bottles and would pay for them, and he (Mr Sandhu senior) had suggested that he do the fence at the back of the shop instead. He had bought the materials from Wickes; the work had been started promptly but had taken a month to finish. In cross-examination, he denied that the money he had paid into the business account was, in fact, the shop’s takings.
22.	Rupinder Sandhu confirmed the appellant’s account in relation to the £1000 cash. This was in £20 notes, and she arranged it in ten bundles of £100, each comprising four £20 notes with the fifth note folded over.  She also confirmed that she had asked him for £1610 for his fees as she was keen for him to take responsibility for managing his finances.
23.	Dilbar Singh Sahota (“Dil”) gave evidence confirming the appellant’s account of the trip to the snooker hall on 20 – 21 February, the £500 cash he had borrowed and the subsequent text messages. 
24.	Joe Gormill (‘Joe’) gave evidence confirming the appellant’s account of the damage to the appellant’s father’s whiskey collection, the arrangement that he would build a fence to make up for it, and his explanation of the texts on 24 February. He also gave an explanation for two texts he had sent to the appellant on the 25 February at 4.07 pm and 4.52 pm. “Can you have it ready in forty-five minutes?” referred to building materials; “What are you saying? Got a free yard,” meant that he had a free house and was just seeking what the appellant was up to. He denied that the messages were anything to do with drugs.
25.	The appellant also called character evidence. Evidence was also read from the appellant’s GP, Dr Heelis, to the effect that he had been prescribed Citalopram from July-November 2010, and again from June 2011 (35A-D) and from Ramnik Parhar, a counter assistant at Sainsbury’s at Letchworth, confirming that the appellant was a regular customer to whom he served chicken three or four times a week.
The grounds of appeal
(1) The late disclosure of observation evidence
26.	There had in fact been observations of the car driven by the appellant on 25 February 2010 before he was stopped and the car searched. Indeed, it should have been obvious to those representing him, if not the appellant himself, that either there had been such observation or the police had received information as to what might be in the car: the chances of a coincidentally successful stop and search were negligible. Those observations were not disclosed to the appellant until he was cross examined. When they were put to him, he changed his evidence as to his movements in the car and who had had access to it. It is obvious that the change in his evidence must have been damaging to his credibility and his case.
27.	For the appellant, it was submitted that this material should have been disclosed to the defence much earlier. If duly disclosed it was material that would have assisted his defence or damaged the prosecution case. 
28.	Mr Wilshire, counsel for the prosecution at the trial, took the view that the observation material was not disclosable. It neither assisted the defence nor undermined the case for the prosecution. He formed his view in the light of the appellant’s then disclosure of his case. As mentioned above, he had made a no-comment interview. So far as relevant, his defence statement read:
“The Defendant is an undergraduate at Hertford University and frequently has given lifts to fellow undergraduates and others in the car in which he was arrested, which is owned by his father, which he is permitted to drive.
As a result, there have been a number of occasions being left in the vehicle bags containing books, sports equipment, mobile telephones, some clothing and other items, by those to whom the Defendant has given lifts.
When this has occurred, either the Defendant or those who had left such items contact each other, and they are subsequently returned.”
29.	On 23 August 2011, Mr Wilshire went to see the judge in chambers to seek his directions as to the disclosure of the observation evidence. That evidence was part of the prosecution case against Lidder, who had been charged with conspiracy to supply Class A drugs. Lidder had been seen with the appellant on 4, 9 and 10 February 2010. On 25 February 2010 the appellant drove the car in a loop. At one point a man got into the car, was in it for a minute or so, and then got out. It was after that incident that the police stopped the appellant. 
30.	The judge directed the prosecution to disclose certain material, but not that relating to the appellant’s movements on 25 February 2010 before his arrest. That material included the prosecution case summary for the prosecution of Lidder and a call schedule. The appellant featured in the case summary and the call schedule showed telephone calls and texts between the appellant and Lidder between 18 and 25 February 2010. The judge did not direct disclosure of the observations of the appellant preceding his arrest; however, he made it abundantly clear to the defence that the disclosure he directed was not exhaustive of the material held by the Crown. He continued:
“… we have - of course discharging our different responsibilities - reviewed the Defence Statement, and of course it could only be on the basis of the Defence Statement that the Crown - and, if asked, the court – can take an informed view as to what may assist a defendant in any particular case.
Whilst the Defence Statement is rich in surrounding personal detail it does not, as far as I can see, describe at all Mr Sandhu’s movements as he recalls them on the vital day in question, the 25th February, before he was stopped and arrested by the Police near Letchworth.
It is my view that it would be helpful to issues of disclosure for him to provide further and better particulars of his Defence Statement in relation to his movements, and those of his vehicle, and any of course significant events that occurred to him, between the hours of 1 pm and 6 pm on the 25th February. 
That, as one can readily see from the phone schedule, is of course when much of the activity with Mr Lidder is occurring.  That begins at 1.20 pm.
If he does provide a positive case, and I stress it ought to be very detailed indeed - chapter and verse as to where he was, and where he was going at various times, with increasing emphasis as 6 pm approaches - then of course the Crown would then be in a position to review its material afresh and consider what, if anything, then falls for disclosure once he has then committed himself to a detailed positive case.”
31.	The defence did not provide particulars of his movements, and those of his vehicle, prior to his arrest. No further disclosure was made by the prosecution until the appellant was cross examined. 
32.	We do not see on what basis it could be said that the observations of the appellant prior to his arrest weakened the case for the prosecution. If disclosed, it would have strengthened it. Equally, we cannot see that it could have assisted the defence, other than by enabling the appellant when giving his evidence in chief to tailor his evidence to the observation evidence. That consideration did not justify imposing a requirement for its disclosure. We point out that when the appellant gave his evidence, the prosecution did not know whether his evidence would be consistent or inconsistent with the observation evidence. If in his defence statement he had given an account matching the observations made of him, different considerations would have arisen, as both Mr Wilshire and judge had made clear. But he did not.
33.	The suggestion on behalf of the appellant that the observation material would have refreshed his memory of his movements is implausible. In the first place, having been stopped on 25 February and drugs found in his car, he must have immediately considered who could have put them there. Indeed, as a law-abiding citizen shocked by the discovery of the drugs, one might have expected him to have assisted the police by identifying those who had had the opportunity to place drugs in his car. Instead, he gave a no comment interview, and served an uninformative defence statement. Secondly, he in fact gave a detailed account of his movements that day in his evidence in chief. Evidently, he had no difficulties of recollection. 
34.	After their retirement, the jury asked whether they could see the document shown to the appellant in cross examination that led him to change his account, or to know what it was. The judge directed the jury in clear terms that the answer to both questions was no, and that they should not hold that against either the prosecution or the defence. In our judgment, that direction was unexceptional, and indeed it would seem to have been largely agreed.
35.	Accordingly, we rejected this ground of appeal.
(2) The admission of text messages
36.	On 19 August 2011 the prosecution served on the defence the results of the phone examinations and on the 22nd August 2011 identified the texts that reliance was to be placed on, namely the 11 text messages referred to at paragraph 6 above passing between the appellant and “Dil”, “Joe” and “Lid” between the evening of 24 February and the evening of 25 February 2010. The defence objected to the late disclosure and the use of these messages at the trial. No good reason was advanced for the late production of this material.
37.	The judge rightly considered that these messages would have been admissible if they had been disclosed earlier. He considered that notwithstanding the very late disclosure the defence would be able to call “Dil”, “Joe” and “Lid”, who could explain the messages. Accordingly, the admission of the texts would not prevent a fair trial.
38.	In fact, the defence were able to call Dilbar Singh Sahota (“Dil”) and Joe Gormill (‘Joe’), who gave innocent explanations of their messages.
39.	For the appellant, Mr Bromley-Davenport QC submitted that the judge should either have excluded this evidence or he should have acceded to the defence application for an adjournment of the trial. An adjournment would have enabled the defence to have an expert examination of the two telephones.
40.	We reject this submission. There was no dispute as to the content of the text messages. The defence were able to call Messrs Sahota and Gormill to deal with the messages to or from them. There was realistically no possibility of the defence wishing to call Lidder: it would have been dangerously foolhardy to do so, since his own prosecution would have gone before the jury, rendering his evidence highly damaging. No application for the expert examination of the telephones was made, we can see no reason why one should have been ordered or permitted and in any event its results are entirely speculative. 
41.	It follows that the fairness of the trial was unaffected by the late disclosure of the text messages. There is nothing in this ground.
(3) The fingerprint evidence
42.	The defence had been told that the cling film in which the cocaine was wrapped had been tested for fingerprints and none had been found. In his closing speech, counsel for the appellant had made the point that if the applicant had touched the drugs, one might have expected his fingerprints to be there. Just before the summing-up, it was discovered that although the carrier bags had been submitted for examination, by an oversight, the cling film wrapping to the drugs had not. Furthermore, the wrapping had been disposed of. The prosecution sought a factual correction. After discussion between counsel for the appellant and for the prosecution, it was agreed that the judge could deal with the point as an example of an investigative loose end when he directed the jury not to speculate as to what might have been found if the wrapping had been examined. The judge did so.
43.	It was regrettable that the defence were misinformed, but we cannot see that the trial was rendered unfair. It was suggested that the defence were deprived of the opportunity to have the wrapping examined. The examination might have found fingerprints of the person responsible for putting the drugs in the appellant’s car. This was entirely speculative, and in any event would not have assisted the jury on the question whether the appellant knew that the drugs were in, or had been put in, the car he was driving.
44.	We reject this ground.
The summing up as to the cash found in the appellant’s wardrobe.
45.	There was a question as to the provenance of the cash found in the appellant’s wardrobe. The defence case was that it had originated in the takings of the family shop and the cash brought back by his parents from India. Unfortunately, till receipts from the shop were not disclosed by the defence until after the appellant’s father had given his evidence. Their disclosure led to further admissions being agreed by the prosecution and the defence.
46.	One of the issues concerning the cash was whether part of it represented the takings from the shop, or whether those takings had been paid into the bank on 24 February. The evidence for the defence was that the cash paid into the bank had been brought back by the appellant’s parents from India. The judge discussed the make-up of the cash in his summing up. In doing so, he put forward an explanation that had not been addressed in evidence or put to counsel. The judge said that it might support the prosecution suggestion that the money paid into the bank was shop takings, in which case part of the moneys in the wardrobe were unexplained.
47.	We consider that the judge was unwise to embark on his consideration of the cash without exploring it with counsel and giving them an opportunity to address it. The judge did make it clear that the facts were matters for the jury. Perhaps more importantly, the provenance of the cash was to some extent a secondary issue. However, for the reasons we set out in the following paragraph of our judgment, this matter does not affect the safety of the conviction.
General
48.	This was a very strong prosecution case. It was not credible that anyone would place a large and valuable quantity of Class A drug in the car driven by the appellant under the driver’s seat without his knowledge. It was not credible that a person dealing in drugs would put them in a car driven by someone wholly innocent, who, if he found them, would presumably hand them to the police. It was not credible that the appellant did not know who had had access to his car on the day of his arrest. It was not credible that, having been arrested, if innocent he would not have named anyone who had had access to his car. Yet he gave a no comment interview and served an uninformative defence statement, which he did not particularise further despite the judge’s clear invitation for him to do so. The account of his movements that he ultimately gave when cross examined was damaging. The text messages from Lidder after his arrest were eloquent. The appellant was clearly a trusted and knowing courier.
Sentence
49.	The judge took into account the appellant’s good character, though it affords only limited mitigation in drug cases, and his youth. The judge was entitled to find that the cash in the wardrobe was in large part associated with drug dealing. The judge made clear the factual basis of the sentence he imposed, and it has not been suggested that he was not entitled to sentence on that basis. The sentence was entirely appropriate for a courier carrying a valuable quantity of cocaine. 
50.	For these reasons, we refused leave to appeal against sentence.