Evidence of uncharged acts – could not be used to establish elements of offence or offences charged
D was convicted of two counts of unlawful trafficking in dangerous drugs, namely 1.66 kg of ketamine (Count 1) and 0.57 kg of ketamine (Count 2). Those dangerous drugs, which were being conveyed in a van driven by D on 27 February 2014, were in three iPhone boxes which someone collected from the van at about 6:50 pm and in nine iPhone boxes found by Customs officers in the van at about 7:00 pm. The prosecution’s case was based on the circumstantial evidence arising from those facts. D gave evidence denying that he knew that the boxes contained dangerous drugs rather than iPhones. He also gave and called evidence of his having delivered iPhones in the past. Prosecuting counsel cross-examined D suggesting that none of his previous deliveries were of iPhones and that those deliveries also involved drug trafficking. In putting the prosecution’s position, the Judge told the jury, “[Prosecuting counsel] said the purported transportation business of the defendant was merely a smokescreen to cover up his drug-trafficking activities. Even if there was a genuine transportation business, said [prosecuting counsel], the defendant could still engage in drug-trafficking activities to earn extra money. Members of the jury, you may agree or disagree with [prosecuting counsel].”
Held, granting leave, treating the hearing as the appeal and allowing the appeal by quashing the convictions and ordering a retrial, that:
- In view of the way the prosecution was putting its case, it was necessary for the Judge to emphasise that: D’s evidence about his previous deliveries of iPhones was relevant to his defence that he did not know and had no reason to suspect that the consignment of iPhones which he was asked to deliver on 27 February contained dangerous drugs. The prosecution was entitled to question D’s account of the previous deliveries and challenge his credibility on the issue. However, even if the jury rejected D’s evidence on the matter, the previous deliveries and the imputation that he had previously trafficked in dangerous drugs formed no part of the specific allegations in the indictment and could not be used to establish the elements of the offence. No such warning or direction along those lines was given. Instead, it was left open to the jury to agree with prosecuting counsel’s proposition. In all the circumstances, the omission of such a direction was a material non-direction.
- The proviso should not be applied. There was a significant body of evidence adduced by D and his witness to the effect that he operated a genuine transportation business. It was a matter for the jury what they made of that evidence and of D. It could not be said that the jury must inevitably have convicted even if they had received an appropriate direction that they must not use the imputation that D had previously trafficked in dangerous drugs to decide whether the elements in the two specified counts in the indictment had been made out.
- There should be a retrial. The allegations were serious ones which had merited an overall sentence of 18½ years’ imprisonment. And since the error which obliged the Court of Appeal to allow the appeal was concerned with the approach to the evaluation of evidence rather than the quality of the evidence itself, it was appropriate that there should be a proper determination of that evidence by a jury properly instructed.