Neutral Citation Number: [2009] EWCA Crim 534
Case No. 200803269‑C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Friday, 6 March 2009

B e f o r e:

MR JUSTICE OPENSHAW 

RECORDER OF LIVERPOOL 
HIS HONOUR JUDGE HENRY GLOBE QC 
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R E G I N A 

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VALENTINE ONYEABOR
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Mr M McDonald appeared on behalf of the Applicant 
 
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J U D G M E N T 

1.	MR JUSTICE OPENSHAW:  On 23 April 2008 in the Crown Court at Woolwich, after a retrial before HHJ Pegden QC and a jury, the applicant was convicted of possessing heroin with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971.  The following day he was sentenced to five and a half years' imprisonment.  He now renews his application for leave to appeal against his conviction following refusal by the single judge.  
2.	The allegation against the applicant was that he was acting together with another man, Joe Peter Obu‑Johnson, universally known as "OJ", which name we will ourselves use.  The facts are that on the afternoon of 13 February 2006, OJ met two undercover police officers calling themselves   "Andy" and "Lee" in a bookmakers in New Cross in southeast London.  Andy and Lee posed as willing buyers of a consignment of heroin, and OJ agreed to sell them half a kilo of heroin for £7,000.  He arranged to meet them to do the deal at 2 o'clock the next afternoon at Sainsbury's car park.  Later that evening, OJ made a telephone call to the applicant.  The following morning, there were four further telephone calls made between OJ and the applicant.  
3.	At a quarter past 1, OJ rang Andy, the undercover officer, to check that the drug deal was still on.  Five telephone calls were then made between OJ and the applicant, the last call being made at 13.51, just nine minutes before the agreed time for the handover.  Shortly before 2 o'clock, Andy walked to the main entrance of Sainsbury's, while Lee drove into the car park.  At 7 minutes to 2, OJ rang Andy to tell him that he was making his way to Sainsbury's, but he did not have a car.  Andy told OJ that it did not matter because Lee had a car in which the deal could be done.  
4.	Further calls passed between them as they tried to locate each other.  At 1 minute past 2, OJ met Andy and confirmed that he had the drugs with him.  Andy told OJ to go to the car, where Lee would weigh and test the drugs.  He said that if Lee was happy with the drugs, he would call Andy's money man who would then walk the money over.  OJ responded by saying that he would have to run this plan by his mate.  He said that his mate was waiting in the car park, and so this would only take a few minutes.  Andy agreed, following which OJ disappeared for a few minutes.  
5.	At 5 past 2, OJ telephoned the applicant.  The call lasted 102 seconds.  Immediately after that call, OJ was seen by police officers to meet the applicant at a petrol station on New Cross Road.  They chatted for a minute, and then OJ passed the applicant a satchel.  The applicant was observed to look into the satchel, following which they both walked off together.  At 10 past 2, they split up again.  OJ walked back to Sainsbury's and the applicant walked back to the petrol station, where he waited on the forecourt looking towards Sainsbury's.  The applicant retained the satchel.  Meanwhile, OJ returned to Sainsbury's.  He went straight back to Lee's car and got in.  Lee told OJ that he had weighed the drugs and there was only 100 grams.  OJ said that he had not brought the whole consignment for security reasons.  Lee telephoned Andy to explain the situation.  Andy told Lee to give the drugs back, and said he wanted to speak to OJ straight away.  OJ explained to Andy that he was concerned about carrying half a kilo of heroin around at any one time.  Andy said that he was not prepared to do the deal in a piecemeal fashion, and told OJ that he had five minutes to sort it out.  OJ then walked off, and was seen to meet another black man, who has not been identified.  This was not the applicant.  
6.	Meanwhile, the applicant left the petrol station and went into a nearby estate agent.  Whilst in the estate agent, his mobile telephone rang.  He answered the call, but did not speak.  After approximately nine seconds, the call ended, following which the applicant left.  He then made his way towards Sainsbury's and met OJ again.  OJ opened the satchel, removed an A4‑sized white plastic bag.  He handed the satchel back to the applicant, and then walked back to the Sainsbury's car park with the bag.  He got into Lee's car, and took out the rest of the heroin which was concealed inside a book.  Shortly thereafter uniformed police officers arrived and OJ was arrested.  
7.	Meanwhile, the applicant was arrested at the estate agent still in possession of the satchel.  He was asked if the satchel was his, and he said, "No, it's my friend's".  The satchel was subsequently searched and found to contain correspondence in OJ's name.  The applicant was interviewed on four separate occasions about the drugs deal.  He denied being involved in any way, or of having any knowledge about what had gone on between OJ, Andy and Lee.  He also denied having any involvement with the satchel, but later admitted that he had lied about that in an attempt to distance himself from the satchel for fear of being equated with guilt.  
8.	All the exchanges between OJ and the undercover officers were tape recorded.  The prosecution case was that the obvious and indeed the only sensible inference from the contacts between the applicant and OJ, so closely associated in time and place to the handover of the heroin, was that they were in it together.  The defence case was that, although the applicant was with OJ, he had no knowledge of the heroin and was not a party to any drugs deal.  
9.	The prosecution applied to the judge for permission to adduce the evidence of the tape recording of what had passed between OJ and the overcover officers.  This was said to be an application for the admission of hearsay evidence.  In our judgment, this application was misconceived.  What passed between OJ and the undercover police officer was not hearsay evidence at all; it was, in our judgment, a statement made by OJ, who was an accomplice of the applicant, in the furtherance of their unlawful joint enterprise to supply the heroin to the undercover officers, which was admissible against the applicant at common law.  This rule of law providing for the admissibility of such a statement was expressly preserved by section 118(1)(7) of the Criminal Justice Act 2003.  Contrary to the submission which we have heard this morning advanced by Mr McDonald, there was, in our judgment, plenty of other evidence which we have reviewed from which the inference could be drawn that they were acting together unlawfully.  We think that the evidence of what passed between OJ and the undercover officers was plainly admissible.  
10.	It was, and indeed is, further argued by Mr McDonald that the judge should have excluded such evidence under section 78 of the Police and Criminal Evidence Act 1984 because it was prejudicial to the applicant, and OJ had since left the country, having apparently been deported having served his sentence after his conviction for the same offence.  He had disappeared and could not therefore be called by the defence in person.  But it was, as the judge rightly observed, open to the defence to have the evidence of OJ read, and indeed in due course the statement which OJ had made to the defence was admitted in evidence and read as part of the defence case.  They could, if they had wished, also have made an application that the transcript of his evidence given at the first trial be read.  
11.	The single judge, Saunders J, carefully considered these matters, and gave his decision in these terms: 
"If I had considered that there was any merit in the grounds of appeal, I would have extended time ... I have refused leave to appeal against conviction because: 
1.  The judge correctly ruled that the evidence of what Obu‑Johnson said wasn't covered by the rule against hearsay because it was a statement made by one party to a criminal enterprise in the course of it and is, under the Common Law, admissible against the other party to the joint enterprise.  The rule is preserved by s. 118(7) of the Criminal Justice Act 2003.  The prosecution didn't in fact need to adduce the evidence at all. 
2.  The judge properly considered whether the evidence should nevertheless be excluded under the provisions of s. 78 of the Police and Criminal Evidence Act.  He considered the correct matters in reaching his decision and it is not arguable that his decision was wrong. 
3.  The judge allowed the evidence of Obu‑Johnson to be read to the jury so that they were aware of what both [the applicant] and he were saying about what happened and what was said.  
4.  It is not arguable that the judge made an error of law or that the conviction is unsafe." 
12.	We entirely agree.  In our judgment, the decision of the judge to admit this evidence was plainly correct.  The evidence is overwhelming.  The appeal is quite hopeless.  The conviction is safe, and the application is refused.