England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		19th September 1996

MR JUSTICE CRESSWELL: On 12th June 1996 at the Crown Court at Wolverhampton before HHJ Mitchell the appellant was convicted of affray, count 2. He was acquitted of count 1, inflicting grievous bodily harm. On 26th July he was sentenced to four months' imprisonment. He appeals against conviction by leave of the single judge.

In the early hours of 14th October 1995 there was an incident in the street involving the appellant, his co-accused, Adrian Davies and Graham Ward, who were both acquitted on both counts, and John French, who sustained a serious injury to his elbow.

As to the prosecution case, John French said that on the evening of Friday 13th October he was making his way home from a public house having drunk about five pints of high strength beer. He was about 50 yards away from his flat in Davenport Road when a car containing the appellant and the co-accused approached from the rear. The car stopped, reversed back at speed and Adrian Davies, who he knew, got out and walked towards him. Davies was agitated and had some kind of long object in his hand. Graham Ward also got out of the car. Davies struck out with the object in his hand and caught French a glancing blow on the thumb. There was a loud scream and the appellant charged at him from the car with a car jack in his hand. The appellant struck out at him with the car jack. He managed to avoid one or two blows but stumbled and was struck. The blow was aimed at his head. He put his left arm up to protect himself and was struck on the elbow instead. He was knocked to the ground and kicked by someone from behind. He could not say who kicked him but Graham Ward was the only one standing behind him, although he did not see him aim the kick.

French was taken to hospital by a neighbour. Police officers who attended the scene about half an hour after the incident described French as extremely drunk. At that stage he was not complaining that he had been assaulted. He suffered a displaced fracture of the elbow and a superficial cut over the right eye. He later underwent an operation. The elbow was fixed by the insertion of metallic wire.

As to the defence case, all the defendants gave evidence.

Davies said he was a passenger in the back of the car. When they arrived at his house in Davenport Road he got out to fetch some cigarettes. He noticed French, who was shouting something at the car. As he came out of the house French came down the garden path brandishing a screwdriver. His grandfather intervened. He went back into the house and armed himself with a poker because he was concerned about what French might do. As he walked to the car French struck him twice with the screwdriver. He did not strike back but pushed him out of the way. French appeared to be drunk. French pursued him aggressively to the car. When he reached the car the appellant got out and fetched a jack. He deliberately struck a telegraph pole with it to try to intimidate French. Graham Ward also got out and simply stood by the open car door. French continued to rant and rave and wave the screwdriver about. Several people came out of their houses. The defendants were attacked by a hail of bottles and ran off. At no stage did any of them strike French. The appellant did not strike French with a car jack.

Graham Ward said he was the driver of the car. French staggered past drunk and said something abusive. French went off towards his flat but returned a few minutes later armed with a screwdriver. When he saw Davies come out of his house, French approached him. Davies went back into the house and came out with a poker. Davies was defending himself and holding off French, who fell over. French was continuing to go for Davies so he, Graham Ward, got out of the car. The appellant also got out and told French to calm down, but he continued to swing his weapon at them. The appellant got the jack from the boot to warn him off. When the bottles were thrown they panicked and ran off. None of them hit French. He, Graham Ward, saw French hit Davies.

The appellant gave a very similar version of events. He got the jack because French was hitting Davies. He told French to leave it but he kept coming towards them saying, "Do you want some?" He tried to back out of the way and hold the jack up to prevent French hitting Davies. The appellant used the jack to strike the post hoping to scare French off. Then the bottles came and he decided to make himself scarce. At no stage did he strike French with the jack.

Mr Jeffrey Williams, Davies' grandfather, also gave evidence for the defence.

Mr Masters on behalf of the appellant has submitted that the appellant's conviction of count 2, affray, was inconsistent with his acquittal on count 1, section 20 wounding, and the acquittals of the co-accused on both counts. In his advice Mr Masters stated that the defence put forward was that the three young men were in fact acting at all times in self-defence, in that French was armed with a weapon (a screwdriver) and that at all times he was the aggressor. It was also contended by the defence that French was extremely drunk and his injuries could have resulted from a drunken fall.

The relevant principles as to the circumstances in which this Court will interfere in the case of inconsistent verdicts are set out in Archbold, Vol 1 paragraph 7-66:

"An appellant who seeks to obtain the quashing of a conviction on the ground that the verdict against him was inconsistent with his acquittal on another count has a burden cast upon him to show not merely that the verdicts on the two counts were inconsistent, but that they were so inconsistent as to call for interference by an appellate court. The court will interfere if it is satisfied that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion which was reached: R v Durante 56 Cr App R 706.

In Durante, the Court of Appeal approved the decision in R v Hunt (1968) 2 QB 433, in which Lord Parker CJ said that the principle in every case is whether the inconsistency is such that it would not be safe to allow the verdict to stand. The fact that two verdicts are logically inconsistent does not, however, make the verdict complained of unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach: R v McCluskey 98 Cr App R 216; R v Segal [1976] Crim LR 324."

Counts 1 and 2 on the indictment did not stand or fall together. A conviction on count 2, affray, was not inconsistent with an acquittal on count 1; although the reverse would be inconsistent. This point was clearly dealt with in the summing-up at page 5C-D.

Mr Quinn for the prosecution in his skeleton argument has provided a possible rationale for the jury's acquittal of the two accused on count 2 but conviction of the appellant on that count as follows: "The prosecution had failed to negative the defence of self-defence raised by Adrian Davies;

There was no sufficiently credible evidence before the court to show that Graham Ward had threatened violence, lawful or unlawful;

The appellant by his own admission had armed himself with a weapon, namely a car jack in order to scare French off;

The evidence of the appellant and his co-accused was that French was extremely drunk and was falling over. French's inebriation was confirmed by two police officers who attended the scene a short time later;

In those circumstances, the use of the car jack was not reasonable and amounted to a threat of unlawful violence."

We would add that the jury may well not have been satisfied that the injuries sustained by French were caused by the car jack but were satisfied that a case of affray was made out on the basis of a threat of violence with the car jack, self-defence having been negatived by the prosecution.

The result depended on the particular facts found by the jury. There is, in the view of this Court, no basis for interfering with the verdict arrived at. This appeal is dismissed.