Jurecka & Ors v R, Court of Appeal - Criminal Division, July 18, 2017, [2017] EWCA Crim 1007

Issuing Organization:Criminal Division
Actores:Jurecka & Ors v R
Resolution Date:July 18, 2017
 
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Case No: 201603320 C5, 201603658 C5,

201603356 C5, 201603322 C5

Neutral Citation Number: [2017] EWCA Crim 1007

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT MAIDSTONE

His Honour Judge Joy

T20157008, T20150077, T20157005

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18/07/2017

Before :

LORD JUSTICE IRWIN

SIR ALAN WILKIE

and

HIS HONOUR JUDGE DICKINSON QC

(Sitting as a Judge of the Court of Appeal Criminal Division)

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Between :

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Mr G Harris (instructed by Foxes Solicitors) for the First Appellant

Mrs R Becker (instructed by Foxes Solicitors) for the Second Appellant

Mr R Barraclough QC and Mr C Wray (instructed by Bond Joseph) for the Third Appellant

Mr D Connolly (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 27 June 2017

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Judgment

Background

  1. On 13 June 2016 in the Crown Court at Maidstone, following a trial lasting more than three months before HHJ Joy and a jury, the Appellants were unanimously convicted of conspiracy to commit fraud by false representation. On 11 July 2016 they were all sentenced to imprisonment of two years and six months.

  2. All three Appellants have leave to appeal against conviction on a single ground. The complaint is that the judge in summing up failed to remind the jury of any of the concessions made by prosecution witnesses during cross-examination. Johnson also appeals against her sentence, by leave of Gilbart J. In addition, the first two Appellants (Jurecka and Johnson) renew applications for leave to appeal on other grounds, following refusal by the single judge.

    The Facts and the Proceedings

  3. Aniela Jurecka and Charlotte Johnson were engaged in the business of buying and selling horses. They used the trading name SE Horses. They operated from two farms, Great Thorn Farm, Marden, and Duckhurst Farm, Staplehurst in Kent. The third Appellant, David Smith, was a veterinary surgeon based at the Lakeview Veterinary Centre in Deal.

  4. The prosecution case was that the Appellants were all three party to an agreement to commit fraud involving the sale of substandard, injured or unreliable horses to unsuspecting members of the public by making false representations as to the qualities of the animals or their suitability for novice or unconfident riders. It was alleged that they dishonestly gave false descriptions of horses in advertisements and in documents for sale, in sales patter and in answers to prospective purchasers' questions. Typically, the false representations would relate to the horse's health, temperament, history, behaviour and particularly to their suitability for novice or inexperienced riders.

  5. Many of the horses were said to have been known by them to have physical or behavioural issues which were deliberately masked for the purposes of inspection by prospective buyers using sedatives and/or painkillers, administered prior to the horse being shown. The drugs, it was alleged, were dishonestly supplied by the Appellant David Smith. The drugs were all prescription only drugs and should have been recorded as being prescribed in relation to a specific animal. They were not. The effect of the drugs would be to calm a nervous horse, or diminish or abolish pain in an animal with physical problems so as to give the animal the appearance of complying with the advertisements or sales patter.

  6. The fraud also involved Jurecka and Johnson persuading, manipulating or tricking buyers into using Smith for the pre-purchase ``vetting'' examination. He would play his part by passing horses which would have been failed had he been acting honestly and in the interests of the buyers, which was his professional and legal duty.

  7. All of the Appellants denied that there was a conspiracy to defraud buyers and denied being party to any such conspiracy. If there were any shortcomings in the descriptions of horses for sale, they were not dishonest, particularly in the context of a world where descriptions of a horse for sale may often not be full and frank.

  8. The issue for the jury was whether they were sure that each defendant was party to an agreement with another that an animal, or animals, should be dishonestly sold by pretending to the buyer that the animal was materially different from the truth.

  9. Amongst other evidence, the prosecution relied upon seventeen specific transactions as evidencing the broader conspiracy between the parties. The exhibit file included many thousands of text messages, mainly from Jurecka's mobile phone, in addition to notes, e-mails and letters concerning other horses sold during the indictment period, which ran from 1 June 2008 to 31 December 2013. The case was structured around the seventeen specific sales of horses. Purchasers gave evidence concerning the transaction and about what took place with the horse after the purchase. There was also a great quantity of evidence from veterinary surgeons, farriers and other professionals, as to the animals' defects and whether they were likely to have been pre-existing.

  10. The bundles provided to the jury were subdivided by reference to these seventeen sales, and the papers and documents for the jury were organised according to each sale, a matter which was of some significance as we shall see. The seventeen transactions, organised in point of time and by name of horse, were as follows:

    i) Jimmy: purchased by Emma Stephens in October 2008.

    ii) Marcello: purchased by Rosalind Sykes in December 2008.

    iii) Charlie: purchased by Diane Hogben in August 2009.

    iv) Snip: purchased by Jacqueline Lowe in January 2010.

    v) Jack: purchased by Natasha Bartlett in July 2010.

    vi) Belle: purchased by Oliver Chinery in October 2010.

    vii) Ollie: purchased by Janet Dellaway in January 2011.

    viii) Bentley: purchased by Susan Leigh in April 2011 (statement read).

    ix) Ali G, aka Bentley: purchased by Frances Taylor in June 2011.

    x) Oakley: purchased by Stacey Boy in June 2011.

    xi) Ringo Cody: deposit paid by Andrea Vizzard in June 2011 who withdrew after further inspection; then sold same month to Vanessa Harris-Magri.

    xii) Blake aka Bruce: purchased by Emma Boughton in October 2010 and Elizabeth Molyneux in September 2011.

    xiii) Christopher: purchased by Samantha Drummond-Hay August 2011.

    xiv) Ben, aka Salvador Dali: purchased by Delia Silver December 2011.

    xv) Duchess: purchased by Jonathan Sidwell in January 2012.

    xvi) Smithy: purchased by Joanne Harris-Hughes in January 2012.

    xvii) Skye: purchased by Emily Henton in July 2012.

  11. In addition to the evidence as to individual sales, there were other important witnesses in the case. Maria Gage worked for Jurecka from September 2011 as a groom. She described how Johnson would come to the premises and, in order to facilitate a sale, would pretend to the prospective buyer that she (Johnson) was the owner and this was a private sale, rather than a sale by a horse dealer. She would give customers a fictional account of the horse's past. She would then take a cut of the sale profits. Gage also gave evidence that it was commonplace for her to be instructed to give a lame or difficult horse a sedative or a painkiller before a customer came to inspect. The drugs would be dropped off by Smith, who she said conducted many of the vettings. She gave evidence that Smith would pass horses which should have failed the vetting. She also described techniques that were used to exhaust a difficult horse before viewing. She described the business as ``a bit of a sham''.

  12. Shelley Anthony was a horse transporter. She too was called to give evidence concerning dishonest practices by Jurecka in the sale and purchase of horses and in relation to the use of sedatives. However, in the course of the trial, it became clear that she intended to depart from the evidence in her sworn statements. Following argument, she was declared a hostile witness.

  13. In the course of the investigation the Appellants were interviewed under caution, in April 2012. Jurecka and Johnson handed in prepared statements confirming that they bought and sold horses but made no further comment. Smith answered questions from police and denied the allegations. He was re-interviewed a year or so later in June 2013 and at that stage answered ``no comment'' to most of the questions asked. In due course, the jury were asked by the Crown to draw an adverse inference from the failure by the Appellants Jurecka and Johnson to mention facts in interview upon which they later relied in their evidence.

  14. We were informed by Mr Connolly, who appeared below and before us for the Crown, that in a pre-trial hearing the judge raised with the prosecution whether it would be a useful mode of proceeding through the long and complex trial for the Crown to produce for the jury, in relation to each of the transactions relied on, a ``working document'' or note summarising the relevant evidence for the jury. Thus, for example, there would be a working document in the ``Jimmy'' file summarising the evidence bearing on that transaction. That procedure was adopted, and the ``working document'' placed into the jury bundle, beside other documents bearing on the sale, photographs and any relevant communications.

  15. Counsel for Jurecka and Johnson objected to this modus operandi. When their objection was overruled they did not provide any parallel working documents on behalf of their clients. Mr Barraclough QC, representing Smith, took a rather different approach. He and his junior provided defence working documents for the jury which were placed in each relevant sub-divider. Although Smith's case had separate aspects, his case was, as Mr Barraclough described it to us, in many respects ``parasitic'' upon the cases against Jurecka and Johnson. If there was no criminal conspiracy between the first and second named Appellants, there clearly was no conspiracy involving Smith. The content of the working documents provided on behalf of...

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