England and Wales Court of Appeal (Criminal Division) Decisions

WRIGHT, R v. [2000] EWCA Crim 38 (15th May, 2000)

Case No: 99/07039/Y5

IN THE SUPREME COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Monday 15th May 2000

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE ALLIOTT
and
MR JUSTICE HENRIQUES
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)

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(Mr A Blake for the Apellant)
(Mr T Cray & Miss A Ezekiel for the Crown)

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Judgment
As Approved by the Court

Crown Copyright ©

MR JUSTICE HENRIQUES:

1. This is the judgment of the Court. On the 5th of November 1999 in the Crown Court at Isleworth (Mr Recorder Phillips) the appellant Derek Wright was convicted of assaulting Peter Edwards thereby occasioning unto him actual bodily harm. He was at the same time found not guilty on an alternative count (count one in the indictment) of a racially aggravated assault contrary to S.29(1)b of the Crime and Disorder Act 1998. The same incident gave rise to both allegations. On the 26th November he was sentenced to 120 hours Community Service, ordered to pay £150 by way of compensation and was in addition bound over to be of good behaviour for a period of 3 years. No complaint is made as to the sentence.
2. Leave to appeal was granted initially by the single Judge Blofeld J who granted leave to ‘argue inconsistency before the full Court’. Accordingly the first question for our consideration is this ‘Was the verdict of guilty of an assault occasioning actual bodily harm inconsistent with the not guilty verdict on the count alleging aggravated racial assault.
3. Before summarising the facts I turn to the trial judge’s observations at the conclusion of the summing up at Page 21 H of Volume III:

“We come back full circle do we not to those three vital questions, ever remembering that it is for the prosecution to prove their case. One: are you sure that was an unlawful assault – that is are you sure self-defence just does not arise? If the answer is yes, question two: did that assault occasion actual bodily harm? If the answer is yes, question three: was it racially aggravated? If the answer is: ‘We are sure of all that’, the assault, the actual bodily harm and the racial aggravation, then you can convict on count 1. If you are sure of the assault and the actual bodily harm but not the racial aggravation, you can convict on count 2.

But if you have any doubt about the assault you acquit right through. If you have any doubt that an unlawful assault occasioned actual bodily harm, you acquit the whole way through”.

1. That passage in our view accurately summarised for the jury’s assistance their proper approach to their task.
2. The allegations in the indictment took place at about 7 pm on the 26th of March 1999. Some 3 hours earlier (the appellant being elsewhere at the time) Peter Edwards who is black had picked up one of his cohabitee’s children from school and observed that his stepson Bradley was crying on the doorstep. Peter Edwards spoke with children in the vicinity and discovered that there had been some name-calling going on. Accordingly he confronted one of the children present who was with his mother and said to him that if the children could not play nicely together they should not play with his stepson Bradley. Daniel’s mother according to Mr Edwards took exception to this approach and said “You can’t talk to my child like that”. Peter Edwards repeated what he had said and Daniel’s mother retorted by saying she would report the matter to Daniel’s father.
3. There is a clear and obvious inference that the exchange of words at 4 pm gave rise to the trouble which occurred at 7 pm.
4. The prosecution called 3 witnesses who dealt with events at 7 pm. In addition to Peter Edwards the complainant, his partner Wendy Henderson-Masters and Dwight Newman an upstairs neighbour gave evidence. According to Peter Edwards he was in the kitchen when after a knock on the door he opened it and was punched twice in the face. He was called a black bastard and a nigger. Another man joined in. He grabbed a chair to defend himself but a third man joined in and they all punched and kicked at him saying “You black bastard – we’ll sort you out – this’ll teach you to fuck about, fucking nigger”. He was then he said attacked with a machete and struck with the flat side of it – they were shouting the same things again and then they left.
5. Wendy Henderson-Masters who had lived with Peter Edwards for 5 years gave evidence that Peter Edwards went to the front door and she saw fighting inside the front door. She saw a man on top of Peter knocking him and Peter trying to defend himself by putting his hands up to stop the attack. She heard the words ‘black bastard’ and the word ‘nigger’ used. She saw two other men one of whom jumped on Peter and she saw a machete being lifted before going to phone the police.
6. The third Prosecution witness was Dwight Newman who was at home when he heard loud banging like chairs falling over and shouting. He went onto the balcony of his flat and looked down to see a man with a machete slapping another man with the flat side of the machete. He saw 5 people in all. The person being attacked was black and was dodging and putting his hands up. He was waving and there was screaming from the women. The other men were all white and they were just standing around. It all took 15 to 20 seconds. He said. When the beating stopped, the guy with the machete said ‘From now on you’d better watch your back’.
7. Dwight Newman made no mention of hearing any racial abuse at any time.
8. The appellant gave evidence and spoke of the trouble between Peter Edwards’ son and Daniel and said

“I decided to give Peter Edwards a mouthful”. Normally there are no problems on the estate. I knocked on the door and when a lady answered it I said I want to speak to Bradley’s dad. After 30 seconds I looked away for a split second and he was in the doorway lunging at me. I’d done nothing. We began to fight on the doorstep – he dived, we wrestled, we punched and it spilt out on to the green outside. I’d gone alone and with no weapons. As we fought two men intervened. Peter Edwards picked a chair up to swing at me, but it fall apart. I saw no machete at any time. I didn’t use any racial insult. I don’t use such words – they’re not decent. I thanked the two for intervening. In cross examination he said he was angry after being told what had happened with the boys. I was pissed off when I went over to Peter Edwards’ house.

1. Lisa Miller who has lived with the appellant for 9 years gave evidence – first as to the 4 pm incident – Peter Edwards she said got hold of Nathan by the scruff of the neck and threw him across the grass area. He swore at me saying ‘Fuck off you nosey white Bitch’. She said he called her a ‘white slag’ and said ‘but your man – I’ll fucking kill him’. She told the appellant all this when he came home and said Derek went alone and unarmed and she could not assist as to what happened outside his house as she was not there.
2. No other witness spoke as to the circumstances of the assault.
3. It follows from the jury’s verdict that they must have been satisfied that the appellant assaulted Peter Edwards and caused him actual bodily harm. They were not sure that the assault was racially aggravated.
4. In support of the contention that the conviction and acquittal are inconsistent it is argued by Mr Blake that the witnesses Peter Edwards and Wendy Henderson-Masters are undermined in their evidence by reason of the fact that the allegations of racial abuse are so intimately connected with their evidence about the alleged aggressive attack that it is difficult to see how the jury could with consistency accept their evidence as to the assault and yet feel unable to rely sufficiently on their evidence as to racial abuse.
5. Such argument runs wholly contrary to the rule enunciated in McCluskey (1994) 98 Cr App R 216

“... the general rule in this Court is that where a jury convict on one count but acquit on another, this Court will quash the conviction on the grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the case could arrive

1. The same principle has been very clearly re-enunciated in the case of Bell (unreported Court of Appeal (Criminal Division) 30th July 1997 and R v G [998]Crim L.R. 483.
2. It is in our judgment very easy to deduce the thought process of this particular jury. Evidence of racial abuse came from the victim and his partner Wendy Henderson-Masters. The witness Dwight Newman was an upstairs neighbour and made no mention of racial abuse but gave compelling evidence in support of the assault. Mr Blake argued that his evidence was parasitic in the sense that it depended on others to be of effect and was not on its own capable of rebutting the defence of self defence. All evidence must be viewed in the context of all other evidence in the case and this jury were entitled to feel sure that an assault had taken place having considered Newman's evidence whilst at the same time receiving no assistance on the topic of racial aggravation from that same evidence.
3. Further this jury may well have concluded that this confrontation had nothing whatever to do with hostility based on the victim’s membership of a racial group. It must be quite obvious to anyone considering these facts that the appellant’s anger was attributable to the confrontation which occurred at 4 pm involving children on the same estate and that the issue of race was or may well have been irrelevant. We find no difficulty in reconciling the two verdicts of the jury.
4. In Durante [1972] 56 Cr App R 708 it was established in this Court that the burden is on the appellant to show that verdicts upon different counts are not merely inconsistent, but are so inconsistent as to demand interference by an appellate Court. This appellant has failed to persuade us that we should interfere. We do not find the verdicts to be inconsistent. In a trial lasting for some 5 days the Jury reached verdicts which are wholly explicable by the facts.
5. This Court has granted leave to argue a second ground of appeal namely that the judge was wrong in law in allowing the prosecution to cross examine the defendant upon the fact that he was dismissed from his employment because of racial comments.
6. It is common ground that whilst giving evidence the appellant chose not only to put his own character before the jury including convictions for dishonesty between 1985 and 1991 but also sought to assert positively that he was without any racial prejudice by saying in his evidence in chief ‘I have no racial feelings against blacks. My brother in law is an Asian. We get on well’, and later ‘I don’t use any racial insults. I don’t use such words. They’re not decent’.
7. Such evidence having been given by the appellant, the prosecution sought leave from the Recorder to cross examine the appellant as to his dismissal from his employment by Royal Mail on the grounds that he had made racial comments. It had been contended against the appellant in disciplinary proceedings that he had written racist graffiti in the gent’s toilet, secondly that somebody had overheard him speaking of another as a lesbian or a dyke and thirdly that racist comments made by him had been overheard. The prosecution appear to have been content to cross examine simply alleging dismissal on the grounds of having made racial comments.
8. Objection was taken on the appellant’s behalf on the grounds that he had been wrongly and unfairly dismissed. The evidence against him in the disciplinary proceedings had consisted of three anonymous statements which the appellant disputed but without any knowledge of the identity of his accusers he could make little contribution to the proceedings. He sought to appeal but his union official failed to turn up and the appeal was dismissed.
9. The Criminal Evidence Act 1898 s. 1(f)(ii) reads:

“f) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless –

i) ......

ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution or the deceased victim of the alleged crime.”

1. There can be no doubt that by both putting in evidence his own character and by positively asserting that he was not racially prejudiced he had made himself liable to be asked questions tending to show he was of bad character.
2. It is plain not only from the statute but also from the case of Marsh [1994] Crim L R 52 that questioning as to bad character is not restricted to criminal convictions. Marsh was charged with inflicting grievous bodily harm on another player in the course of an ‘off the ball’ incident in a rugby game. He sought to adduce evidence that he had no previous convictions but the judge ruled that to do so would leave him open to cross examination about his disciplinary record for violent play on the rugby field. He had been sent off four times for violent play. The Court of Appeal held that in the circumstances once he had elected to put in his good character the judge was bound to exercise his discretion in favour of allowing cross examination, otherwise the jury would have been given a seriously misleading impression.
3. In the present case the prosecution relied upon this decision in persuading the learned Recorder to permit cross examination as to the dismissal from Royal Mail.
4. No member of this Court however would have permitted such cross examination by reason only of the apparently unsatisfactory nature of the disciplinary proceedings, and the fact that an adverse finding appears to have been made in reliance upon three unsigned anonymous statements.
5. In consequence of the ruling the jury learned of matters contained in anonymous statements which were adverse to the Defendant.
6. In due course however and as part of the Defendant’s case the Recorder permitted evidence to be called as to the disciplinary hearings themselves. A union official Mr Coy was called and at some length dealt with several unsatisfactory aspects of the disciplinary hearings in particular that accusations of harassment and racial graffiti were put to Mr Wright but he was not shown the letter making the accusation.
7. We would have preferred that evidence to have been called before the Recorder upon a voir dire so that he could determine whether or not to allow cross examination upon the dismissal. We think it likely that if he had appreciated what may have occurred at the disciplinary hearing that he would have been minded to prevent cross examination as to the dismissal.
8. In the event however the jury not only heard the cross examination but they were fully informed as to the potential shortcomings of the disciplinary procedures. It is manifest from their verdict on count one that the appellant was not prejudiced by the admission into evidence of his dismissal. They acquitted him of the racially aggravated offence. No doubt they took the view that the disciplinary proceedings may not have been fair. It is we think inconceivable that the appellant was adversely affected on count 2 by reason of the introduction of the dismissal. There was an abundance of evidence to establish that the appellant assaulted Peter Edwards not least that of Dwight Newman. We are satisfied that the conviction on count 2 is a safe one.
9. We have considered in a wider context whether or not the admission into evidence by way of cross examination of the appellants dismissal deprived him of a fair trial. We are quite satisfied that he had a fair trial and accordingly the appeal is dismissed.