England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
His Hon Judge Playford

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th July 2003

Lord Justice Judge:

1. On 12 June 2003 we dismissed Haja Andriamampandry's appeal against his conviction at Reading Crown Court on 7 December 2001, before His Hon Judge Playford QC and a jury, of causing grievous bodily harm with intent. At the same time, his appeal against a sentence of seven years' imprisonment was allowed, and a sentence of five years' imprisonment was substituted.
2. These are the reasons for our decisions.
3. The essential facts are simple. During the night of 18/19 July 2001, the appellant was working at a hotel in Reading. Using a master key, he entered the hotel bedroom of a young woman, aged 22 years. As she lay in bed, something woke her. She saw a shadow. When she was half awake she heard a voice say, "I'm sorry, I thought the room was empty." She was suddenly unable to breathe. There was a hand on her throat, strangling her, and fingers in her mouth. She fought off her attacker and scratched his face. According to medical evidence, bruising found on the victim's neck was consistent with both sides of the throat being squeezed with finger movements for between ten and thirty seconds. The victim may well have been rendered unconscious for a brief period. She herself thought that she had been incontinent of urine, and said that she had vomited afterwards and felt giddy.
4. After the appellant had released her, he left her bedroom. She telephoned the reception desk, seeking help. The call was timed at 5.10am. The police attended the hotel. They found that the appellant had scratches on his face, and that his hands were shaking. In his interview he asserted that his injuries were the result of an attack by a gang in the town centre, of which he had been the victim. He insisted that he had nothing to do with the offence. However, he did not persist in that untruthful story when faced with the result of DNA analysis. He pleaded guilty to causing grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861.
5. The single issue for the jury at trial was whether, when inflicting grievous bodily harm, the appellant had done so with intent to cause grievous bodily harm, contrary to section 18 of the 1861 Act.
6. In his evidence, the appellant admitted that he had entered the victim's room. He thought that this took place at about 1am. He claimed that he was a kleptomaniac, in need of help, and that when he entered the room he intended to steal from it, looking for mobile phones to enable him to telephone his home in France. When he realised that there was someone in the bed, he panicked. So he threw himself at the person in bed. He then realised it was a young woman. He put his hand on her mouth to prevent her screaming. He was just trying to keep her quiet. He could not remember whether he had put his fingers into her mouth, but he had put his hand on her neck to push and hold her. At the most he held her neck for about ten to fifteen seconds, not in order to strangle her, but to keep her quiet. He did not appreciate that she had passed out.
7. We question whether, in the ultimate analysis, the jury would have been less inclined to infer that the necessary intention had been proved, even if the appellant was merely a thief, who panicked when he discovered that the occupant of the hotel bedroom was not only, unexpectedly, present in her bed, but waking up. The intention required for the purposes of section 18 is not excluded by panic: indeed, it might result from it.
8. No criticism is directed against the summing up. The single issue in the appeal arises from the way in which the judge dealt with a total of 17 notes received by him from the jury before the retirement. None was received afterwards.
9. It follows, therefore, that the jury, or perhaps one or two of its members, was inclined to ask questions. On each occasion, the question was put into writing and dealt with as the case proceeded. Each note was sent from the jury to the associate, or usher, or direct to the judge, in full view of counsel, and the rest of the court. The judge did not actually show all the notes to counsel, but he usually, but not always, read out the note he had received, before dealing with it in the presence of the jury.
10. The trial began on 3 December 2001. Five notes were received on that day. It may be helpful to illustrate how the judge dealt with these questions generally, by taking the first two as examples.
11. Jury note 1 read: "Can we establish if the injuries were sustained during sexual contact?" The judge read the question out in open court, and commented:

"There is no evidence at the moment at all on this topic, and we approach this on the basis that there is no evidence at all…It may be that, in the light of Miss Marshall's [prosecuting counsel] opening of this case, no evidence at all of any sexual contact will be forthcoming."

12. Jury note 2 read: "Was the door locked, or chain on, from the inside?"
13. The judge waited for a convenient moment in the evidence of the complainant, and then said:

"This may be a convenient moment to ask another jury question: when you locked yourself in, when you closed the door at night, did you lock it?"

The witness replied, "It is not a handle that you open the door with; it closed automatically."

14. In each case, save two (notes 5 and 10) a record was made on the note of the precise date and time when it was received. All the notes, save those two, were put in sequential order, and all were preserved. By a process of deduction we infer, as we were invited, that note 5 was received on 3 December, and note 10 was received on 4 December.
15. On 4 December notes numbered 6, 7, 8, 9, as well as note 10 were received from the jury. Notes 11, 12 and 13 were received on 5 December. Notes 14, 15, 16 and 17 were received on 6 December, note 17 coming immediately before the retirement.
16. With that background, we can now address the criticisms of the way in which the judge dealt with the notes. Criticism is confined to notes 10, 12 and 13, which were received when the appellant was giving evidence.

Note 10 reads:

"Has the defendant had any psychiatric consultation since he alluded to it in his letter 22/8/01 – claiming to be a kleptomaniac – and if yes:- has a psychiatric report been prepared and if not: why not? – bearing in mind it is 3½ months since he wrote the letter."

The note was handed to the judge in the usual way. At a convenient moment in the appellant's evidence the judge said that there was a question from the jury, which he would ask.

Q. In your letter you say that you were going to see a psychiatrist about your kleptomania?

A. Yes.

Q. Did you see a psychiatrist?

A. In prison I asked if I could see a psychiatrist, and I was told there was no possibility of seeing one.

Q. Have you, in fact, seen a psychiatrist?

A. No."

The note itself was not shown to counsel. It is submitted that the judge's summary was inadequate, and did not alert defence counsel to the fact that the note had something to do with the appellant's case that, notwithstanding his previous good character, he suffered from kleptomania. However, that submission is not sustained by the record of the exchange, which focused on the defendant's own claims that he was a kleptomaniac, who had written a letter that he was going to see a psychiatrist about the condition.

17. Note 12 reads:

"By admitting to 1am, the defendant is making his crime appear far worse. If his character was so bad, why would he not agree the time was 4-5am? The prosecution makes no sense."

The note was handed to the judge in the usual way. He did not read it out loud, or show it to counsel. He commented:

"I think you will have to clarify that question, whoever wrote it. I am not quite sure I am following it. Could you ask whoever wrote it to clarify that question?"

It is suggested that this note may have been written by a juror who was questioning the appellant's recollection. As we read it, the juror was making a defence point. In effect, why should the defendant not take advantage of the fact that the time of the incident was nearer 5am than 1am, which would serve to diminish his culpability?

18. Note 13 is in two halves. It reads:

"Sir, that phone – the stolen one – would have been reported. Was it?? (I am doubting the previous day's theft.)"

A line is drawn under that passage. These words then follow:

"He has just said the previous day he stole a mobile phone from another room. That theft would surely have been reported? Can we ask/find out if that theft was reported to the Hotel?"

From the way the judge dealt with it, it looks as though the note was complete when it was handed to him. He said that there was a jury question. He summarised it:

"Q. …That theft would surely have been reported the previous night?

A. As far as I know I didn't hear anything about this.

…

Q. Although you had stolen it yourself, you were not keen to find out whether the theft had been reported?

A. No, not really.

Q. [Obviously addressing the jury] That is as far as I can take your question. You ask: 'Can we ask/find out if the theft was reported to the hotel?' I fear that it is too late in the evidence now to revisit that question."

There is some dispute whether this note was actually shown to counsel. Counsel for the defence at trial (not Mr Morley) has written that she never saw it. Counsel for the Crown's recollection is that it was indeed shown to counsel, and that, as a result, she told counsel for the defendant that the police could give evidence that a second mobile phone was found on the appellant. We do not have to decide which recollection is correct: we shall assume that the note was not physically put into the hands of counsel for the defence, nor shown to her to read.

19. With the agreement of defence counsel, the police officer responsible for the investigation was recalled. When she gave evidence, she confirmed that no theft had been reported from the hotel, but that two mobile phones were found in the defendant's possession, one on arrest, and another, subsequently, during the course of a search of his own hotel room.
20. Mr Morley suggests that this note implied doubts about the appellant's credibility. He has suggested how he might have approached the problem if he had been present at trial and seen the note. We decline to follow Mr Morley along his chosen route to reconstruction. We have considerable reservations whether, at that stage of the trial, a lengthy re-examination would have been tactically wise.
21. At the end of that day, after the jury had left court, counsel raised with the judge what was described as "concern at not being shown the notes that were sent by the jury". Counsel for the Crown accepted that the defendant had a right to see the notes. The judge took the view that where the notes were confined to matters of comment, rather than questions to be put to a witness, it was not "desirable" to show the notes. He did however point out that if there was some authority which obliged him to disclose the notes, he would certainly do so, adding that if counsel for the defendant had wanted to see them, she should have asked at the time. The judge ended the exchange by repeating that if there were some binding authority to show him, the application could be renewed in the morning. He ended,

"If I have a discretion, I exercise it against putting these things in the public domain. If you tell me I have not a discretion, then I will have to do it."

No further application was made to him, and no authorities were drawn to his attention.

22. In fact, the principle arising for consideration in this appeal was analysed and decided in Gorman [1987] 85 CrApp R121. Lord Lane CJ explained that, if the communication from the jury raised administrative issues, "unconnected with the trial", the judge could deal with them without referring to counsel or, indeed, asking the jury to return to court.

"In almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful to do so, seek the assistance of counsel."

Lord Lane concluded his judgment by examining the reasons underpinning the principle.

"…The object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret communication between the court and the jury, and secondly, to enable the judge to give proper and accurate assistance to the jury on any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity."

23. The principles, therefore, are clear. In the present case, the fact of each of these notes, including the three particular notes under consideration, and their receipt by the judge, took place in open court, in public view. They were not and were not treated as private communications between the judge and the jury. In most cases, the terms of the note were read out in open court, and the appropriate question duly asked by the judge. In those cases, in the absence of any express request, there was no requirement for the notes to be physically handed to counsel, although if counsel had asked to see them, it would have been normal practice to allow them to do so.
24. Given these principles, unless the note was of such a character as to come within the exceptional range of which a specific example was given in Gorman itself, an irregularity occurred when a note was received from the jury which was neither read out in open court, nor physically handed to counsel,. Although Gorman was concerned with a note received after the retirement of the jury, the objective underpinning the principle applies to notes received before, as well as after retirement.
25. Fortunately, and wisely, all the notes sent by the jury were retained. None is secret: all are open to examination in this court. We agree with Mr Morley that, one way or another, counsel should normally have been fully informed about the contents of each note. So, having examined them, we regard the judge's failure to read out the whole of notes 10 and 13 as an irregularity. If the judge did not think it appropriate to read out each note in its entirety in open court, it should have been handed to counsel, so that if necessary (and we doubt whether it would have been) counsel could have decided whether to address him and invite him to pursue those aspects of the note which he chose not to canvass. However, in our judgment these failures were minor, indeed trivial. In reality, it seems to us that the judge dealt adequately, properly and sufficiently with both these notes.
26. The judge rightly regarded note 12 as comment. He sought clarification, and received none. There was therefore nothing for him to pursue. The jury was no longer seeking his assistance. Some judges would have shown the note to counsel, certainly if asked to do so. Others would have thought it unnecessary and inappropriate to read out or show the note to counsel until it had been clarified. In the situation similar to the one with which we are concerned in relation to note 12, it must be left to the trial judge to decide whether it is appropriate for a note received from the jury, which takes the form of a comment requiring clarification, to be shown to counsel, although, again, if counsel asks to see it, it should normally be shown. We doubt whether the way in which the judge dealt with note 12 amounted to any irregularity at all: if it did, it too was trivial.
27. We have examined these three notes, and asked ourselves whether those notes which were not read out in full in open court, nor seen by defence counsel, could reasonably have led to a significant line of evidence, or argument, of which the appellant was otherwise deprived. We can see none. The irregularities which took place do not begin to undermine the safety of this conviction.
28. It is unfortunate that neither counsel was able to assist the judge by drawing his attention to Gorman. Notes 10 and 13 would then have been shown to them. The judge may also have reconsidered his decision in relation to note 12. Either way, the jury would certainly have convicted the appellant. There would have been no need for this appeal.
29. For these reasons, we dismissed the appeal against conviction.
30. The appeal against sentence can be dealt with briefly. This was a most unpleasant incident, undoubtedly extremely alarming to the victim. Nevertheless, the assault itself was not prolonged. The judge recorded that, although she had made a full and quick physical recovery, it was a matter of speculation whether and when she would recover psychologically.
31. The appellant himself was 23 years of age, and a man of good character. He had admitted that he was the person responsible for the assault before the trial began, although it has to be said that the DNA evidence against him was overwhelming. The trial itself was concerned with his intent, and although the victim gave evidence, it was not suggested that her complaint was fabricated or exaggerated.
32. In our judgment, the sentence imposed on the appellant would have been appropriate to reflect a greater degree of criminality, and a greater degree of persistence than the appellant showed, and possibly also more severe injuries than the victim actually suffered. In our judgment, seven years' imprisonment was excessive. The appropriate sentence was five years' imprisonment. Together with the order for deportation, we shall therefore substitute a sentence of five years for the sentence imposed at Reading Crown Court.