(R E V I S E D)
LORD JUSTICE STEPHENSON: This Appellant, Kenneth Joseph Roberts, was convicted on 23rd June last at Cheshire Quarter Sessions by a jury of an assault occasioning actual bodily harm, and he was fined by the Chairman 550. He was tried on an indictment alleging first of all that he indecently assaulted a young woman of 21; he was acquitted on that charge, but convicted of the assault occasioning actual bodily harm to her. He appeals to this Court by leave of the single Judge, who pointed out that what was involved here was really a point of law, on which no leave was necessary; and the point of law relates to a direction given by the learned Judge to the jury who convicted him of this assault.
The jury had to decide what evidence to accept from the girl herself, and from the Appellant. They accepted some police evidence, and the evidence of a witness or witnesses who had seen the girl immediately after the alleged assault. There was no other evidence before it. The girl's story was that on the evening of 1st May she went to a base camp for troops in Lancashire, being at that time engaged to be married to an American serviceman who had gone to Vietnam. She was friendly with many of the people at that American base, and from that base she went on to a party where she met the Appellant, for the first time. She left that party at about three o'clock in the morning, having agreed to travel with the Appellant, whom she had never met before, in his car to what he said was another party, in Warrington. After they had driven out of Warrington in the direction of Liverpool. she asked the Appellant where the party was, and he said that they were going to Runcorn. They took a curious route to Runcorn, and eventually, she said, they stopped on what seemed like a big cinder track. The time by then was apparently about four a.m. Then, said the complainant,
"He just jumped on me. He put his hands up my clothes and tried to take my tights off. I started to fight him off but the door of the car was locked and I couldn't find the catch. Suddenly he grabbed me and then he drove off and I started to cry and asked him to take me home. He told me to take my clothes off and if I didn't take my clothes off he would let me walk home, so I asked him to let me do that. He said if he did he would beat me up before he let me go. He said that he had done this before and had got away with it and he started to pull my coat off. He was using foul language".
And then she said she told him,
"I am not like this",
and he said something like,
"You are all like that".
Then he drove on.
"Again,"
said the girl,
"he tried to get my coat off so I got hold of my handbag and I jumped out of the car. When I opened the door he said something and revved the car up and I jumped out. The next thing I remember he was backing towards me and so I ran to the nearest house. He backed and shouted and then he drove off",
and then she remembered being in the lady's house. She said she was taken to hospital, she was treated for some concussion and for some grazing, and was detained in hospital for three days. When she was cross-examined, she said,
"I was fighting for my life to get him off. He had hold of me while he was driving. I probably struck him when he was trying to drag my coat off, although I didn't strike him in the face. He was travelling at about 45 miles an hour when I jumped out of the car".
At another point in her evidence, she said that actually before she had jumped out of the car he started to take her coat off –
"That was the last straw. I opened the door and jumped".
A woman was called from the house which she knocked up, to describe her distressed condition.
There, of course, the jury was faced with the fact, and it was not disputed when it came to the evidence of the Appellant, that this girl, by no means an inexperienced girl, of 21 years of age, had for some reason or other jumped out of a moving car, and went running, shouting for help, to a house, in a very distressed condition.
The Appellant, when seen by the police, and apparently seen by the police in connection with a possible charge far more serious than that for which he appeared at Sessions - a charge of rape, or attempted rape - told them,
"It's not like you say, all of it. She was game and led me on. Then she changed her mind and stopped. I was angry but so would you. I drove off. When she jumped out I wasn't going very fast".
When he came to give his evidence, his evidence was as consistent with what he said to the police, as was the evidence of the complaining girl, and what she said to the police. He described how the girl had made advances to him - not the other way round - and how she had moved his hand away, and so on, and how they had a bit of an argument about her first of all making advances to him and then changing her mind, and he said,
"I called her a cow. She hit me and I got hold of her arms and she was shouting and bawling. I drove along about two miles and suddenly she opened the door and flew out. I was going to take her home. I stopped the car about 15 yards further on. I was going very slowly because of the argument"
- that means, I think, when she flew out of the car --
"If it was more than 20, it was very little more. I reversed back and I dropped the window and said, 'don't be daft'."
There was a certain amount of evidence that this girl had been drinking, and indeed she freely, I think, admitted that she had in the car with her a tumbler, which she said contained wine, and he said contained gin; and according to the Appellant, she had been behaving in a very familiar manner with other officers and persons at this base, or this party they had been to before they got into the car. She denied that she had been drinking, and indeed a woman doctor who examined her said that she was not drunk - and perhaps more important, when he was asked about it, the Appellant himself said that she was not drunk, although she had a certain amount to drink, but she was just "merry".
In those circumstances, the jury had to make up their minds first of all whether this man was indecently assaulting this girl; and after a direction to the jury of which no complaint is made, or could be made, the jury acquitted him, as has been said, on that charge.
Next, they had to consider; was the Appellant guilty of an assault occasioning her actual bodily harm? Of course, for that to be established, it had to be established that he was responsible in law and in fact for her injuries caused by leaving in a hurry the moving car, and it is the Chairman's direction with regard to the law on the second count which leads to this appeal. So far as the assault occasioning actual bodily harm was concerned, said the Chairman,
"the matter arises in this way. The Prosecution say, that is to say, Miss Bell says, that driving along in the car, after the scene on the car park, the Defendant, she says, started trying to take her coat off. That act, in the context of the conversation that had been going on, if it was against her will, was an assault. The Prosecution say that was, for her, the last straw".
The Prosecution were using the girl's words,
"That act, that assault, say the Prosecution, caused her to jump from the car. If, therefore, you find that it was an assault, that is to say, find that the Defendant did try to take her coat off and that she was not consenting and because of that she jumped out of the car and injured herself, then that would be an assault occasioning actual bodily harm, but you have to be satisfied that there was an assault and that it was that assault that caused the harm".
Then he gave an illustration, possibly misleading to the jury and not very helpful, about the way in which the harm could be caused. Then later on he came back to the second charge;
"That, in point of time and space, takes us some five or ten minutes on and about two miles down the road. At that stage Miss Bell says, 'He was telling me what he had done to other women, the effect of his conversation was that he was going to have his way with me, and then he started to take off my coat. That was the last straw. I opened the car and jumped'."
- the evidence of the girl I have already referred to. He then used these words,
"If that be true, then without doubt, that is an assault and it occasioned actual bodily harm. Your verdict would be guilty upon that charge. His version is, 'We were arguing. Of course, I was frustrated at being stepped when I was stepped but I had nothing really to do with her jumping out of the car. It was merely a result of a verbal battle between us. She suddenly opened the door and before I could do anything she had gone'. If that be right, there was no assault. Certainly you would acquit on that- charge. But, once more, remember it is for the Prosecution who have brought the charge to prove it. If you are sure that their version be right, convict, but not otherwise".
He then went in detail into the accounts of the girl and of the man.
It is quite clear that nothing was said in the Court of trial about common assault. All that was said was about indecent assault, and assault occasioning actual bodily harm. As regards the Appellant's version, and the alleged indecent assault, what was said was accepted by the jury, or must have at any rate given them enough doubt to feel that they could not accept certain of the girl's evidence on that. But it follows clearly, in the view of this Court, from their verdict, that they did accept in substance the evidence of the girl, preferring it to the evidence of the Appellant. They may have been impressed - it is difficult to believe they were not impressed - by the absence of any real explanation by this Appellant of how this particular young woman came to leave the car in the circumstances which injured her, and in the condition which was attested by at least one other witness; and they did not accept his evidence - they accepted her evidence.
It is very difficult for this Court to say - indeed, impossible- that they were not entitled to do so. The only question is; was there a misdirection by the Chairman which led them to that conclusion, or compelled that conclusion on their part? - and the way that is put in the grounds of appeal which Mr. Carus has pursued before us is that the Chairman was wrong in law when he told the jury
"if you are satisfied that ho tried to pull off her coat and as a result she jumped out of the moving car, then your verdict is guilty".
He failed to tell the jury that they must be satisfied that the cause of her injuries was the action of the Appellant, and not the fact that she was under the influence of alcohol, or any other reasons. Then he goes on to submit that the learned Chairman was wrong in failing to tell the jury that they must be satisfied that the Appellant foresaw that she might jump out as a result of his touching her, before they convicted. And there is a complaint, not really pursued in this Court, that the Judge failed to direct the jury that they might find the Appellant guilty of common assault.
We have been helpfully referred to a number of reported cases, some well over a century old, of women jumping out of windows, or jumping into or throwing themselves into a river, as a consequence of threats of violence or actual violence. The most recent case is the case of Lewis (Criminal Review 1970. P.647). An earlier case is that of Beech, in 1912 (7 C.A.R. P.197) which was a case of a woman jumping out of a window and injuring herself, and of a man who had friendly relations with her, whom she knew and might have had reason to he afraid of, being prosecuted for inflicting grievous bodily harm upon her contrary to s.20 of the Offences against the Person Act. In that case, this Court approved the direction given by the trial Judge in these terms:
"Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?"
That, said the Court, was a proper direction as far as the law went, and they were satisfied that there was evidence before the jury of the prisoner causing actual bodily harm to the woman.
"No-one could say",
said Darling J. when giving his judgment of the Court,
"that if she jumped from the window it was not a natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was".
This Court thinks that that correctly states the law, and that Mr. Carus was wrong in submitting to this Court that the jury must be sure that the Appellant, who is charged either with inflicting grievous bodily harm or assault occasioning actual bodily harm, must foresee the actions of the victim which result in the grievous bodily harm, or the actual bodily harm. That, in the view of this Court, is not the test. The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft", in the words of the Appellant in this case, or so unexpected, not that this particular assailant did actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really the result of a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.
In those circumstances, bearing in mind that that is the law, can any fault be found with the summing up of the learned Chairman? Undoubtedly, the learned Chairman took a strong line when, in his summing up at page 8 of the transcript, he told the jury that, if the girl's account of what induced her to jump out of the car was true, then their verdict would be guilty. But the jury had to consider: is the girl's story broadly speaking about these two assaults - particularly the assault occasioning actual bodily harm with which this Court is concerned - right, or may the Appellant's story be true, in which ho fails entirely to account for the girl's jumping out of the car, except possibly for the alcohol she had taken, and her anger at his conduct- suggested not, apparently, by the Appellant himself, but by his Counsel? No fault can be found with the learned Chairman for in effect withdrawing this from the jury in the sense that he told them,
"if you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, tolling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his, his violence, his threats, by jumping out of the car."
The Court has come to the conclusion, after the assistance of the arguments of Counsel on both sides, that the Judge was right to tell the jury that it was their duty to convict if they accepted the evidence of the girl, and there was no misdirection involved in his telling them just that. For those reasons, the Court finds no misdirection in the summing up, and nothing in the grounds of complaint made on behalf of the Appellant, and this appeal against conviction must be dismissed.
MR PHILLIPS: The Appellant is legally aided - I do not think it suitable to ask for costs.
MR. CARUS: The state of the Law in this sort of case obviously leads to difficulties. I ask for a certificate to appeal further.
LORD JUSTICE STEPHENSON: No, we are indebted to you, but we cannot honestly say that we think this raises a point of general public importance.
