Criminal evidence — previous conviction — discretion to allow cross-examination on defendant’s previous conviction for same offence — allowed on basis defendant had “lost shield” by making allegations against police — whether discretion properly exercised — whether direction to jury adequate to obviate risk of harm from revelation of criminal record
In 2016, D was convicted of trafficking in dangerous drugs, namely, a total of 0.85 g of heroin hydrochloride and 248.31 g of methamphetamine hydrochloride (Ice) found in her flat by police in her presence. The prosecution claimed that under caution, D had admitted to trafficking in dangerous drugs which a man (X) had brought and asked her to deliver to clients on telephone instructions; and signed two post-records to that effect. In a video-recorded interview (“VRI”), D stated that X had “coerced” her into distributing drugs for him as she was indebted to him; he had threatened to harm her daughter; some of the drugs were hers; and some were left by another man and she knew they were Ice. At trial, D gave evidence that: the drugs did not belong to her and she did not know why they were there; the police had threatened to arrest her daughter; coached her on what to say in the VRI; induced her to sign the VRI by promising her bail and a lenient sentence; and they had given her heroin to consume so she would be more compliant and sign the incriminating documents. Before cross-examining D, the prosecutor applied in the absence of the jury to the Deputy Judge to cross-examine D on her previous criminal convictions, including one in July 2010 for trafficking in dangerous drugs, on the ground that she had “lost her shield” by making the allegations against the police. D’s counsel informed the Deputy Judge that she could not resist the application since D was advised of such risk but insisted on proceeding. After reflecting on the application overnight, the Deputy Judge granted it the next morning. He stated that D’s defence had gone beyond mere emphatic denial, including allegations of threats and inducements against prosecution witnesses and, in particular, “giving the defendant heroin whilst she was in police custody, in order to advance their scheme of having her sign false confessions”. Subsequently, he gave the jury the standard specimen direction in such circumstances and emphasised that D’s “convictions are not relevant at all to the likelihood of her having committed the offence. They are relevant only as to whether you can believe her”. D applied for leave to appeal against conviction.
Held, dismissing the application, that:
1) The Deputy Judge plainly understood that he had a discretion to permit the prosecution to cross-examine D on her previous convictions and properly considered its exercise. He was evidently concerned about the ramifications of exercising it in the prosecution’s favour but reasoned, correctly, that any risk or harm flowing from the revelation of D’s criminal record would be adequately catered for by a firm judicial direction, which he in due course gave. This ground would be difficult enough with defence counsel’s stated position: it became untenable given the Deputy Judge’s careful exercise of his undoubted discretion. (See paras. 34–36.)
2) The Court played the court recording of the arguments and ruling on this matter to D in open court with a contemporaneous translation, so she could appreciate the reasons for the application at trial, her own counsel’s position and the Deputy Judge’s careful approach to his task in deciding as he did. (See para. 37.)
This was an application for leave to appeal against conviction for trafficking in dangerous drugs after trial before Deputy Judge Line and a jury in the Court of First Instance. The facts are set out in the judgment.