England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday 6th March 1997

B e f o r e:

LORD JUSTICE SCHIEMANN

MR JUSTICE CURTIS

and

THE COMMON SERJEANT

HIS HONOUR JUDGE DENISON QC

(Acting as a Judge of the CACD)

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R E G I N A

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GAETANO CONSTANZA

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(Handed Down Transcript of Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR M HURST (MISS EDHAM) appeared on behalf of the Appellant

MR A MALIK (MR M GREAVES) appeared on behalf of the Crown

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J U D G M E N T

(As Approved by the Court)

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Crown Copyright

JUDGMENT

LORD JUSTICE SCHIEMANN: This is an appeal by a 32 year old man who was convicted of assault occasioning actual bodily harm and sentenced to a probation order for three years. The appeal is against the conviction. The conviction was at the Crown Court at Luton before His Honour Judge Moss.

The Complainant was a Miss Wilson who used to work for Vauxhall. So did the Appellant. The Appellant wished to form a relationship with Miss Wilson. Between October 1993 and June 1995 the Appellant indulged in the following unusual behaviour:-

Following her home from work,

Making numerous silent telephone calls to her at work and at home as well as some telephone calls in which he spoke,

Sending and delivering over 800 letters to her home over a period of 4 months,

Sitting in his car outside her home in the early hours of the day,

Driving past her home and circling on occasion,

Visiting her home in April 1995 and talking to her and her mother for long periods on the doorstep when asked not to do so,

Daubing the words "no guts, coward" on her door in marker pen on three occasions.

By June 1995 Miss Wilson felt all the actions of Constanza were such that he posed a threat to her personal safety. She had told him that his behaviour was making her ill and he had told her that if he could not have her nobody else could. On 4 June 1995 a letter was delivered by hand to her home. She read within it a clear threat that she should not say no to Constanza. Eight days later on 12 June 1995 she received a further hand-delivered letter upon which much turns. This letter said:-

"Why wait two months, what for. Call sooner, call before. I want a quiet life, a life with you a future only with you, I can't give you up when I don't want any other but only you. Haite me, go on, Haite me, Haite me for daring to say I love you. Haite me for it go on, do that, go on, keep being bitter. Haite me for it, of all you can do you got the (word unclear) OK after that no more excuses, no more being the child. Or we play games my way. Especially with those who want to take things into their own hands. So can I do that. For I owe them for personal matters should stay personal"

and it goes on further with words which are not presently material. Miss Wilson read this letter, which she said, she knew had been put by him through her door and said that she was extremely scared. She believed Constanza had "flipped" and was going to do something to her. She felt it could happen at "any time".

A Doctor Pinto saw Miss Wilson on 27 July 1995 and his evidence, which was undisputed, was that she was suffering from a clinical state of depression and anxiety. He was of the view that Constanza's actions had caused her the harm he had diagnosed.

The case has been well argued both by Mr Hurst for the Appellant and by Mr Malik for the Crown. Mr Hurst conceded that the Appellant's behaviour towards Miss Wilson occasioned actual bodily harm. His main submission to us was that what the Appellant had done could not in Law amount to an assault and that therefore the Judge was wrong to reject a submission of no case to answer and was wrong to leave the case to the Jury at the conclusion of the evidence.

Both parties were content to adopt the classic definition of assault namely "Assault is committed where a person intentionally or recklessly causes another to apprehend the use of immediate and unlawful personal violence - see R v Savage [1992] 1 AC 699 at 740. Both parties are agreed that violence should be given its ordinary natural meaning. Both parties are agreed that the fear must be of the use of immediate violence. Both parties are agreed that the time to start measuring is the time when the victim has the fear. In the present case no earlier than the time when she actually read the letter. There was no very clear evidence as to when this was. Both parties are agreed that cases could theoretically arise when the fear is of violence not before a time in the distant future and that in those cases it would not be right to leave the case to the Jury. Both parties are agreed that at the other end of the spectrum there can be cases when it should be left to the Jury to decide whether or no the fear was of violence sufficiently immediate to be described as the fear of immediate violence. The essential difference between the parties on the facts of the present case is whether these fall into the category which could legitimately be left to the Jury or whether the Judge should have decided that there was such lack of immediacy that the Prosecution had not established enough to allow the case to be left to the Jury.

At one point Mr Hurst sought to argue that it was significant that the Appellant had departed from Miss Wilson's house after delivery of the letter. In our judgment the significance of that is minimal in the light of the correct concession by Mr Hurst that there was no reason to suppose that Miss Wilson had read the letter before the Appellant departed. The essential issue to be decided by this Court is whether it is enough if the Crown have proved a fear of violence at some time not excluding the immediate future. In our judgment it is.

An important agreed feature of this case is that the Appellant did not live far from Miss Wilson. Her evidence was that on reading the last letter she felt that the Appellant had not only totally "flipped" but she was extremely scared. She thought that something could happen at any time. In our judgment the Judge was entitled to leave to the Jury the question whether or no she had a fear of immediate violence. And the Jury were entitled to find that she did. We reject the submission of Mr Hurst that a person cannot have a fear of immediate violence unless that person can see the potential perpetrator of that violence.

Mr Hurst's secondary submission was that an assault could not be committed by words alone but that here had to be a physical action. We reject that submission. What is important for the Prosecution to prove is that the fear was there in the Complainant's mind. How it got there, whether by seeing an action or hearing a threat and whether that threat was conveyed verbally through words spoken either directly in the presence of the Complainant or over the telephone or whether the fear was aroused through something written whether it be a letter or a fax seems to us wholly irrelevant. Why should this matter? As authority for his submission Mr Hurst drew our attention to a passage at 1 Hawk. Ch.62 Section One where the learned writer states -

"Notwithstanding the many ancient opinions to the contrary, it seems agreed at this day that no words whatsoever can amount to an assault."

He also drew our attention to the direction of Holroyd J to a Jury in Meade's and Belt's [1823] 1 LEW CC 184. By contrast our attention was drawn to the following passage in Smith and Hogan Criminal Law, 8th Edition, page 414 -

"It was formerly generally accepted that mere words cannot constitute an assault ............. In England, there seems to be no more authority for the proposition than a dictum of Holroyd J in Meade and Belt that ´no words or singing are equivalent to an assault'. The proposition has been rightly questioned by modern writers -

´If a Plaintiff turns a corner to be confronted by a motionless robber who, with gun in hand, commands ´hands up' why should not this be an assault'

Moreover,

´The opinion would deny the possibility of an assault (as opposed to a battery) in pitch darkness when a gesture cannot be seen but menacing words can be heard'

In Wilson Lord Goddard said of the accused:

´He called out "get out the knives", which of itself would be an assault, in addition to kicking the gamekeeper.'

This was a mere dictum but it surely counterbalances that in Meade? in a Civil case, the Court of Appeal held that a threat forcibly to eject P was an assault."

In our judgment the tentative opinion expressed by Hawkins and the words attributed to Mr Justice Holroyd in his charge to the Jury in Meade, are dubious foundations for the general proposition claimed. It is worth noting that in Meade's case the words relied on are immediately followed in this old report by the Judge's direction to this effect:-

"If you are satisfied that there was nothing but the song and no appearance of further violence"

impliedly in our view correctly indicates that conduct accompanying words can make the words an assault. In our opinion the academic criticisms we have set out are valid.

Mr Hurst's next point was that the particulars of offence as set out in the Indictment were set out in a way which did not adequately bring to the Defendant's attention the fact that the Prosecution alleged that the assault relied on was that constituted by the last letter. The particulars read -

"Gaetano Constanza on a day between 1.11.93 and 16.6.95 assaulted Louise Wilson thereby occasioning her actual bodily harm."

The Defence did not ask for particulars of the offence and we are satisfied that it was clear to all concerned that the final letter was being relied on by the Prosecution. Miss Wilson's evidence about the effect of this letter on her has already been set out. Mr Hurst at the trial perfectly understandably did not choose to cross-examine her upon what she said. We are not persuaded that the form of the Indictment was the factor which led to him not cross-examining. Indeed he did not argue that it was. The Judge correctly told the Jury that an assault was an act or acts which caused the victim to apprehend the immediate use of unlawful force. He correctly told the Jury that they had to be sure having regard to all the evidence that the Defendant foresaw that by what he was doing Miss Wilson might fear she was then and there to be subjected to immediate unlawful force, but nonetheless he went on and ignored the risk that such a fear might arise in her. No criticism has been made of this passage. In our judgment the Judge was entitled to leave this case to the Jury and this Appeal fails.

LORD JUSTICE SCHIEMANN: For the reasons set out in the judgment that has been handed down this appeal is dismissed.

MR GREAVES: My Lord, I appear for the Crown today. My learned friend Miss Edham appears for the appellant. On my instructions I apply for costs in this case in the sum of £300.

LORD JUSTICE SCHIEMANN: Miss Edham, have you any comment on that?

MISS EDHAM: My Lord, I do. The information that I have is that Mr Constanza has been in custody for nearly a year. He was in a mental hospital for six months prior to his sentence. He was given a three year probation to effect those periods of incarceration. However prior to his arrest he was not working and the information is that he is still not working. His family are not wealthy. My Lord, I would ask that costs are not allowed for the reasons that Mr Constanza simply cannot afford them.

LORD JUSTICE SCHIEMANN: Yes. We will not order costs.

MISS EDHAM: My Lords, I have handed questions of law of general public importance. As you are aware Mr Hurst was counsel for the appellant in this matter and it is he who has drafted those questions.

My Lords, I would ask that you certify that there is a question of law of public importance on those three questions before your Lordships and also that there is leave granted for an appeal to the House of Lords in this matter.

My Lords, Mr Hurst is presently in a trial in Lewes and he was allowed the opportunity to remain in that trial and not to have to appear today. He has in any event tried to be here today. He had sought leave from the learned judge in that trial, however the judge had reluctantly not allowed that leave since that trial was only for four weeks and is now five months running.

LORD JUSTICE SCHIEMANN: It is not necessary for him to be here. The points that he states here we can understand. Whether we accede to the application I do not know but they are perfectly understandable points to make.

MISS EDHAM: I am grateful.

LORD JUSTICE SCHIEMANN: The position is that in principle we are minded to certify something. The first question does not cause us any great problem. The second and third we are not entirely happy with. Mr Greaves, is there something you would like to say about this?

MR GREAVES: My Lords, I did not of course argue the appeal for the Crown so I come to this somewhat an innocent. But I can well see that there is some considerable interest in this particular kind of case.

LORD JUSTICE SCHIEMANN: I think what we will do is think among ourselves as to the possible form of questions and send a copy to each of the parties of what we are minded to do and give them an opportunity to address us, which I hope they will not take. If you can convey that to counsel.

As regards leave, for that you must go to their Lordship's house.

MISS EDHAM: Certainly.

LORD JUSTICE SCHIEMANN: The time for the application will not formally run until such time as we certify the particular point because you cannot obviously apply until you have that certified form. Are there any other orders required?

MISS EDHAM: My Lord, no.