Daly, R v
September 26, 2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE ELIAS
- MRS JUSTICE COX DBE
- MR JUSTICE WILKIE
Areas of Law
- Criminal Law and Procedure
- Evidence Law
September 26, 2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The Court of Appeal (LJ Elias, with Cox J and Wilkie J) allowed Mr Daly’s appeal against his conviction for theft from Miss Ellie Held, an 82‑year‑old resident who hired Daly and Neil Smith for household work. After Miss Held paid £200, £5,000 went missing from her bedroom; the money was later anonymously returned with an apology letter which Daly admits he wrote at Smith’s request. The Crown Court excluded evidence of Smith’s prior similar conviction (distraction burglary with an accomplice), and excluded a letter Smith sent about attending trial. Applying the Criminal Justice Act 2003, the Court of Appeal held that s101(1)(e) was engaged and s104 did not apply, because the important matter in issue was which co‑defendant committed the offence and Smith’s similar conviction had substantial probative value. Citing Phillips, the court found exclusion of that evidence rendered the majority verdict unsafe, quashed the conviction, and noted the Crown would not seek a retrial.
J U D G M E N T
LORD JUSTICE ELIAS: This is an appeal against conviction by leave of the single judge. The appellant was convicted by a majority of 11 to 1 of theft. He was sentenced in the Crown Court at Blackfriars before His Honour Judge Pillay on 28th February 2014 to 9 months' imprisonment suspended for 12 months. A co-accused, Neil Smith, was also convicted of the theft. He was sentenced to 6 months' imprisonment. He was in fact tried in his absence having notified the court that although he had absconded, he wished the trial to go ahead. He was represented by counsel in his absence.
The facts are during the week of 5th November 2013, the co-accused and the appellant did work together for a Miss Ellie Held, an 82-year-old woman living in a block of flats. She had fortuitously bumped into Smith, who was unemployed, and he agreed to clean her windows. When he came she was somewhat surprised that she had to provide him with the relevant equipment. They had a discussion and he agreed to come and paint her hall. He returned together with the appellant, Daly, and they did this work on Thursday 8th and Friday 9th November 2013. She paid £200 for the work. She later discovered that two envelopes which were in a chest of drawers in her bedroom had gone missing. They contained £5,000 in cash.
She subsequently reported this to the police and provided a statement. In her evidence she said that she felt at one stage the older man was distracting her and she was suspicious about them. She later identified Smith as the younger man who had been working on her property. He was in fact 45 at the time of the offence and the appellant was 68.
Smith was arrested on 13th November 2012. He made no reply to the caution and he refused to answer any questions in interview.
Subsequently, on 14th December, £5,000 in cash was posted through Miss Held's door. The money was in a brown envelope. There was a letter with the money saying: "I'm sorry for what has happened. I got other people into trouble over my desperation. I'm returning the amount. God bless." The appellant accepts that the letter was in his handwriting.
The appellant was arrested following interrogation of the cell phone of Smith. When cautioned he denied having taken any money and he provided a full comment interview having declined the opportunity to have a lawyer present. He accepted that he had been involved with Mr Smith in working in the house on the relevant Thursday and Friday although he said he was