England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 12th December 2003

1. LORD JUSTICE KENNEDY: On 24th June 1998 in the Crown Court at Guildford, this appellant was convicted of three offences: affray, two offences of assault occasioning actual bodily harm which were respectively counts 1, 3 and 4 in the indictment and the indictment contained a fourth count, count 2, which also alleged assault occasioning actual bodily harm, but of that count the appellant was acquitted.
2. Gary Ayrton was convicted of the offences charged in counts 1 and 4 and he too was acquitted on count 2. The appellant did seek leave to appeal against conviction and sentence but his application was refused by the Single Judge and was not renewed. He now appeals against conviction on count 4 only, that conviction having been referred to this Court by the Criminal Cases Review Commission.
3. The grounds of appeal now relied upon read as follows:

"1. There was a failure to put relevant evidence before the jury, in particular (a) a failure to elucidate from Benjamin Bowers his identification of Gary Ayrton as carrying a snooker cue (b) a failure to call Simon Wood to give evidence and (ii) in all the circumstances the applicant's conviction on count 4 is unsafe."

4. On 28th February 1997 there were at the Cricketers at Pirbright three regular customers, Christian Holme, Ben Bowers and Gary Reed. The appellant was not a regular. He was there with his friends, Gary Ayrton and Jason Smith. The appellant had with him a two part pool cue which inside the public house was used for its proper purpose. Unfortunately, some trouble erupted between the regulars, on the one hand, and the appellant and his friends on the other, hence count 1 in the indictment, the count of affray.
5. Holmes sustained some injuries, hence, count 2. The fighting then began in the car park. That is the point at which it is necessary to look a little more closely for the purposes of this appeal.
6. Smith and Bowers were struggling with each other. The appellant joined in, striking Bowers on the back with his pool cue, hence count 3 in the indictment. Separately, but in the same general area, Ayrton attacked Reed. It was the case for the prosecution that the appellant had joined in and hit Reed in the eye with his cue. Certainly Reed sustained a serious injury to his eye which could have been caused by the cue being used as a weapon. That injury to Reed was the subject matter of count 4. Ayrton contended that he was attacked by Reed who was not aware of being involved with anyone other than Ayrton. The appellant said that he only went to Bowers to assist Smith who was being attacked by Bowers. He was not involved with Reed at all. No one initially saw the appellant strike Reed but the prosecution contend that he was the man with the cue, and he must have been responsible. In a passage in the summing-up to which Mr Rutherford has drawn our attention this afternoon, the learned judge put it this way:

"In large measure the Crown case on this point against Mr Hall is that he was the only person using the billiard cue that afternoon as a weapon, and, therefore, in the light of the medical evidence, he must have been one of Mr Reed's attacker."

7. We turn now to the evidence at trial. Holmes saw both Ayrton and the appellant in front of Gary Reed but he saw no part played by the appellant and certainly no blows struck. He saw the appellant with a pool cue but Ayrton, he said, was not carrying anything. Bowers, the victim of count 3, casts no light at all upon what happened to Reed, but Reed himself said that Ayrton was not carrying anything, whereas the appellant had a cue. Miss Sullivan, who was Bowers' girlfriend, remembered the appellant hitting Bowers with his cue until she persuaded him to desist, but she did not allege that he attacked anybody else.
8. The landlady, Mrs Mason, claimed to have seen Reed being hit by a man wielding a broken cue. But the assailant she described (particularly by reference to the colour of his hair) was clearly Ayrton and not the appellant. She was sure that only one person had a cue.
9. The appellant was arrested the next day and he was interviewed. Part of his broken cue was recovered by the police from a pond where he told them that they should be able to find it. The other and smaller part was recovered it seems from a dustbin, where the pieces had been thrown possibly by a man named Wood. When interviewed the appellant described his part in what occurred. We need not refer to the whole of the interview but at page 6 there appears this passage, summarising what the appellant was saying. He stated:

"Gary wasn't holding anything but admitted that he Hall was still holding his cue in two piece. He stated that when the man initially came into the pool room that Jason had hold of one half of the cue but had dropped it [Jason being Smith]."

Questioned about previous statements, that is the cue had been in one piece when he hit the male, Hall stated he made a mistake and that it had been in two pieces not one.

10. On the following page of the record there appears this:

"He stated that there was a lot of tension in the air and it could have gone either way. He stated that he was holding both parts of the pool cue when he went outside. The tall man with the black shirt said to Hall, 'So you think you're hard because you've got a pool cue, etc."

Then, at the end of that interview he agreed it was the thick end that broke and could not explain how the thin end was broken. So the account given in interview by the appellant was plainly an account which was consistent with everyone other than Mrs Mason and was to the effect that he had both parts of his own cue but nobody else had a cue and that he had used that cue to assist Smith in relation to Bowers, but that it had not been used in relation to Reed by him or anyone else.

11. At the trial Ayrton gave evidence first. He explained his encounter with Reed. He said that he did not use the cue but afterwards the appellant boasted about how many people he had hit, including Bowers who was struggling with Smith. Someone had said to someone, according to the appellant, that he would have a sore head because he had hit him so hard.
12. Smith was the next defendant to give evidence and he was pretty sure that the appellant had not even hit Bowers with his cue. The appellant then gave evidence and he described Ayrton leaving the pool room first. He followed about 15 feet behind. He did use his cue to hit the back of the man who was attacking Smith, that is to say Bowers, but he did not get involved with Reed and he only boasted because it was, as he put it, a macho thing to do so. He did not think that he handed any part of his cue to anyone, and he did not suggest that anyone else was armed.
13. On 8th September 1999 the appellant sought the assistance of the Criminal Cases Review Commission. It seems that it is now his contention that Mrs Mason may have been right about who was in possession of the pool cue, despite the position which, on the face of it, the appellant adopted in the court below. Enquiries made by the Criminal Cases Review Commission have revealed that three witnesses whose statements were available to the defence at the time of trial and one of whom was called as a prosecution witness could have given some support for the evidence of Mrs Mason, to the effect that Ayrton when struggling with Reed was armed with part of a cue.
14. The first such witness was a barman named Nicholas Hall who had returned to New Zealand by the end of the trial. The statement he made to the police did assert that Ayrton, not the appellant, was carrying half a cue when he left the pool room, followed by the appellant, and than Ayrton then used it as a weapon until it broke.
15. The second potential witness was Simon Wood, who also claimed to have seen Ayrton, who had, as we have indicated, a distinctive appearance, leave the premises with half a pool cue in his hand, and Simon Wood spoke of what happened thereafter. The third witness, who could have given some support to Mrs Mason was Benjamin Bowers who said in his statement to the police that Ayrton was the first out of the premises with a pool cue in his hand, holding the thin end.
16. Although Bowers did give evidence, he was not asked about that part of his statement to the police.
17. The Criminal Cases Review Commission rightly recognised that this Court has frequently refused to hear evidence that was capable of being produced at the trial. But under section 23(1) of the 1968 Criminal Appeal Act, we can receive such evidence if we consider it necessary or expedient in the interests of justice to do so.
18. The Commission, rightly, attempted to obtain from the solicitors and counsel who had represented the appellant at his trial assistance as to why they had conducted his case as they did, without seeking to cross-examine Bowers about the weapon which he said was in Ayrton's hand and without seeking to introduce the statement of Nicholas Hall and call as a defence witness, Simon Wood.
19. Not perhaps surprisingly solicitors and counsel were unable to give very much assistance as to the reasons for tactical decisions which were made a long time previously. Counsel, by the time the enquiry was made of her, had no real recollection of the matter at all.
20. The solicitors were almost equally in difficulties. They were written to on 29th May 2001 and in a reply dated 31st May 2001, they said with regard to paragraph B of the letter:

"...we have no note on our file relating to a decision not to use the witness Simon Wood and Nicholas Hall, which were disclosed as unused material prior to the committal in July 1997."

Some further correspondence ensued. In a letter dated 30th November 2001 they said:

"We are able to confirm that the question of the evidence to be called on behalf of Mr Hall was thoroughly considered by counsel and ourselves during conferences in the presence of Mr Hall. Counsel used her considerable experience and judgment concerning the evidence to be presented at trial and we concurred with that judgment."

There, in effect, the matter rested.

21. That was all in 2001. The Commission then at paragraph 10.42 of their report make the surprising revelation that they have been unable to identify any tactical or practical reasons why the evidence of Simon Wood and Nicholas Hall should not have been adduced at the trial. At paragraph 10.5O, they say:

"The central issue in the Commission's view is whether the information or argument which was not placed before the court as a result of the decisions made during the conduct of the defence is capable of forming the basis for an arguable appeal. Given the evidence not used in relation to factual matters in dispute at the trial it concludes that the failure to use the evidence of Mr Hall and Mr Wood or to deal with the previous inconsistent statement of Mr Bowers are matters of such significance as to give rise to the real possibility that the Court of Appeal would conclude that Mr Hall's conviction for the assault on Mr Reed was unsafe."

22. Mr Rutherford, who appeared before us today on behalf of the appellant was then instructed. He immediately recognised that the statement of Nicholas Hall, if read, would have done far more harm than good to the defence case - a matter which, we would have thought, the Commission would have been able to recognise for themselves.
23. Mr Rutherford in his advice said and we quote "it would have been a serious error for Philip Hall's counsel to call Nicholas Hall" bearing in mind that Philip Hall was also contesting counts 1, 2 and 3. We agree. Thus the grounds of appeal only refer to what could have been adduced from Bowers and to the possibility of calling Simon Wood.
24. Should that evidence have been laid before the jury? Does its existence, taken together with the rest of the evidence, cause us to conclude that the conviction is unsafe? In order to answer that, it is, of course, helpful to know what the instructions of the appellant to his solicitors and counsel were at the time of trial. Mr Rutherford, sensibly and rightly, has been attempting to ascertain what they were. He has been unable to make contact with the appellant, except indirectly through his mother, and the information he has received is essentially that it was all 6 years ago and he cannot remember.
25. There is, however, a clear inference to be derived from the documentation which is before us and that inference is reinforced and helpfully reinforced by the skeleton provided Mr Shay, on behalf of the respondents, Mr Shay having been prosecuting counsel in the court below.
26. We are entirely satisfied that, as Mr Shay points out, it never was the appellant's case that Ayrton had either the appellant's cue or any other pool cue on that evening. Still less, that Ayrton used such a weapon on Reed. The explanation for the injury sustained by Reed, which was advanced at trial, was that it could have been caused by a shard of glass from a bottle used to strike Ayrton. That defence simply could not be advanced in tandem with the suggestion that Ayrton caused the injury to Reed with a cue. It would have been, in our judgment, forensic madness. It would, as Mr Shay points out, have resulted in there being cut-throat defences and the only party to benefit would have been the Crown.
27. Mr Rutherford has rightly submitted this afternoon that, as part of the proper preparation of this case, those acting on behalf of the appellant should have given serious consideration to the possibility of calling Simon Wood, whose statement was disclosed as part of the unused material by the prosecution. The extent to which consideration was given to that statement is unclear. Mr Rutherford is right to say that there is no evidence to suggest that the solicitors acting on behalf of the defence obtained a separate statement from Simon Wood. The probability is that they did not. There were things in the statement of Simon Wood which would have been of assistance to the appellant. For example, that there was a degree of aggressiveness on the part of those who were regulars at the public house.
28. But the heart of the statement of Simon Wood and the part on which the Commission focused when they decided to refer this matter for the attention of this Court, was the assertion of Simon Wood that Ayrton was the person who carried the cue out of the public house, and wielded it when he was in conflict with Reed. If Wood had been called as a witness, that part of his evidence would inevitably have become part of the defence case, with consequences for this appellant, which are only too easily to foresee. Wood would have been cross-examined on behalf of Ayrton and also on behalf of the Crown. At the end of Wood's appearance in the witness-box, it seems to us that anyone acting on behalf of this appellant would have been asking themselves: why on earth did I call that witness today?
29. In our judgment, there is simply no reason to think that this appellant was not properly and competently represented at his trial. The information not adduced from Bowers, from Simon Wood and above all from Nicholas Hall, was rightly disregarded, whether or not it was analysed at the time. It does not cause us to question the safety of the conviction and this appeal against conviction is therefore dismissed.
30. Thank you very much for your help and the work you have put in on this matter, Mr Rutherford.