England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		9th March 2004

Tuesday, 9th March 2004

1. LORD JUSTICE RIX: On 7th February 2003, in the Crown Court at St Albans before His Honour Judge Ronald Moss, the appellant, Mark O'Sullivan, was convicted on one count of attempted robbery and a second count of wounding with intent to do grievous bodily harm.
2. On the first count he changed his plea from one of not guilty to guilty just before the commencement of the trial and was ultimately sentenced to four years' imprisonment. That was made concurrent with the mandatory sentence of life imprisonment which he received on the second count, with a recommendation that a minimum of five years be served. The second count was the only count to go before the jury.
3. In essence, the forensic issue between the parties at the commencement of trial was, in terms of guilt or innocence, the question of whether the wounding, committed in the course of the attempted robbery to which the appellant had pleaded guilty, was done with intent to do grievous bodily harm.
4. In sentencing terms, the forensic issue between the parties was whether the appellant would be sentenced to a mandatory sentence of life imprisonment on the basis of the conviction under section 18, or would merely be sentenced to a determinate period of imprisonment for a section 20 offence, which in the circumstances would add perhaps nothing in terms of a prison sentence to the conviction for attempted robbery on his own plea.
5. It was in these circumstances that before the trial commenced, and at the time when the plea of guilty to the count of attempted robbery was entered, the appellant indicated in writing his willingness also to enter a plea of guilty to an alternative count of section 20 if that was available. That offer, however, was rejected by the prosecution. Similarly, it was no doubt for these reasons that during the trial the prosecution did not suggest that an alternative count of section 20 wounding would be available to the jury, and no such alternative was left to the jury.
6. The appellant now appeals against conviction by leave of the single judge, who gave leave on two out of the three grounds which were before him on paper (what we will refer to as grounds B and C). The appellant was not given leave to appeal on ground A, but in the course of this hearing we have extended leave on that ground also. There is a fourth ground, ground D, which has been raised before us today. We give leave to argue that ground as well. Those four grounds will make more sense when we have set out the basic facts of the case.
7. At about 10.30 in the evening of 20th August 2002 the appellant attempted to rob the Boston Take-away Fried Chicken Shop in South Oxhey. He had drunk four litres of strong, 10 degree proof cider that day. He walked into the shop, vaulted over the counter into the staff area and demanded money in the till, threatening the staff with a kitchen knife which he had brought with him. At the time there were three members of the staff in the shop; all, we think, Sri Lankans. We hope they will forgive us if we refer to them as they were referred to at the trial by the following names: Ramanen was the manager of the shop and Yogesh and Siva also worked there.
8. In the ensuing confusion Yogesh received a stab wound through the left arm and a superficial cut on the stomach. Ramanen hit the appellant with a pizza shovel and Siva, who had been in the back of the shop when the appellant entered, threw hot cooking oil towards him. The order in which these events occurred was, however, controversial. The appellant said that the wounding occurred after he was hit with the pizza shovel and had oil thrown on him, and the three witnesses from the shop said that the wounding occurred before those events.
9. In the event the appellant ran from the shop, discarding his shirt outside, and made it home. The knife has never been found. The incident was recorded on CCTV within the shop, but the actual woundings were not recorded and available to the jury. The appellant was arrested several months later, we think as a result of DNA being obtainable from the discarded shirt.
10. The prosecution case was that the appellant had used force over and above that necessary for the robbery. He had stabbed Yogesh in the stomach, and when Yogesh tried to defend himself through the arm as well. After Yogesh had been stabbed both times Ramanen tried to stop the attack by hitting the appellant with the shovel, and Siva was successful in doing so by throwing the oil. The appellant's intention, said the prosecution, was to cause really serious harm and that was demonstrated by his use of the knife to stab Yogesh before the other two took any action against him.
11. The defence case, on the other hand, was that the appellant did not intend to cause any harm with the knife, which he was using simply to reinforce the threat of his robbery, and that he did not even know that he had caused any injury until he read about the incident in the newspapers the next day. The case was, in effect, that the injuries to Yogesh were caused accidentally.
12. Thus, Ramanen gave evidence that he had seen the appellant vault over the counter, carrying a knife, and grab Yogesh with his left hand. Ramanen said he saw the knife go into Yogesh's arm. Ramanen tried to help, first by banging a pizza shovel on the counter and then by hitting the appellant on the shoulder with it. Siva gave evidence that he saw the knife and the stabbing movement and that it was only later that he had thrown hot oil or Ramanen had used the shovel. Yogesh similarly gave evidence that the appellant had stabbed him before either he or Siva had taken any action.
13. The appellant gave evidence that he had been drinking, partly for Dutch courage, and was drunk. He said that when he demanded money from Yogesh, Yogesh had resisted and he had then taken out the knife to reinforce his threat. He did not stab or lunge at Yogesh either then or later. He felt the hot oil hit him. The staff were trying to overpower him and someone grabbed his right arm. He decided to run and used both hands to push Yogesh away. The knife was still in his hand because there was no time to drop it. In response to a question from the judge, he clarified that remark to state that he did not think about dropping the knife. He did not realise that he had injured anyone until reading about the incident in the newspapers.
14. In cross-examination he suggested that Yogesh might have come forward and impaled himself on the knife. He accepted that the knife he was holding must have caused the injuries but he did not see it go through Yogesh's arm or know it had happened; it must have been accidental.
15. Those were the basic facts. The first ground of appeal, ground A, is that the judge misdirected the jury by directing them that the basis of the appellant's defence was one of self-defence, whereas it is submitted that the true basis of the appellant's offence was one of accident, as we have indicated. That was the ground which we have given leave to argue in the course of this appeal.
16. In Mr Wyeth's skeleton, on behalf of the prosecution, (Mr Wyeth was counsel for the Crown at the trial as Mr Long, who represents the appellant, was similarly counsel at trial for the appellant) he states in effect that the defence of the appellant at trial was one of self-defence, and that the judge had rightly set out the appellant's case at trial in a passage from the summing-up quoted in the skeleton to this effect:

"... the basis of his case is - and he tells you now - that he was frightened and that he used the knife and may well have caused the injury in order to protect himself against those three men when they effectively fought back, but they were overpowering him."

17. The basis for the suggested defence of self-defence was this passage in the appellant's evidence at trial, taken from page 20 of the summing-up:

"'I realised' he said, 'that I wouldn't get control of the situation. They were trying to overpower me - one in front, one behind. Somebody grabbed my right arm, and I decided to get away. I used both hands to push Yogesh away. The knife was still in my hand'. Then he said, 'There wasn't time to drop the knife. People were on me'. Well, you have seen the video. That is arrant rubbish! He did have time to drop the knife. What he says is, when I asked him the question, that he did not think about dropping the knife."

We think, however, that that evidence, although arguably it might set up the possibility that a judge in his discretion should, in fairness to the defendant, have left a defence of self-defence to the jury, as a matter of the judge's obligation to leave every possible available defence of a defendant to the jury, is nevertheless in fact entirely consistent with the defence which, in essence, the appellant was advancing in his evidence and his counsel was making on his behalf in submissions to the jury, and that was that the injuries had happened accidentally in the course of the melee when he was being attacked by the people in the shop and he was trying to make his get-away.

18. The question of what exactly was the defence at trial was raised by Mr Long on behalf of the appellant before the judge immediately after the end of the judge's summing-up. The following passage then occurred which we think we should set out in full. This was immediately after the jury had retired to consider their verdict:

"MR LONG: Your Honour, may I mention something? It is this: your Honour directed the Jury in relation to self-defence and I believe that your Honour said that the Defendant said he was frightened and used the knife because he was frightened, and he may well have used the knife to protect himself because he was worried he would be caused injury by the three males in the shop.

JUDGE MOSS: Yes. Did I say that? Well, if I did, what is the problem?

MR LONG: I believe you did.

JUDGE MOSS: What is the problem?

MR LONG: The defence on behalf of Mr O'Sullivan is that he -- at no time did he use the knife to cause injury. He did not know that he had caused injury.

JUDGE MOSS: I said that more than once.

MR LONG: Your Honour did, but it was just that during the caution, when your Honour dealt with the issue of self-defence, your Honour said that, and in my submission it may have -- I only raise it in case your Honour feels it is appropriate to mention it to the Jury. It may have caused them to think that the Defendant's case is that he was -- he properly used the knife in order to ward off the attack by Yogesh Warren and the other two in the shop.

JUDGE MOSS: His case is that he thought he was about to be overpowered and in those circumstances I have left the defence of self-defence to the Jury. If they come to the conclusion that he was not about to be overpowered and his belief was not an honest one, the only other explanation is that he might have done it accidentally, which is what I am saying to them."

Pausing there, it would seem from those remarks of the judge that he was treating the case as one in which the appellant's primary defence was one of self-defence and that his alternative secondary defence, if self-defence did not work, was one of accident. We resume quoting from the relevant passage:

"MR LONG: Your Honour, yes, but he said that when he thought he was being overpowered that he pushed him away with his hand, and he did not think about the knife being in his hand. That was the evidence that he gave. At no time did he say that he was justified in using the knife to defend himself. That is the point which I raise, your Honour.

JUDGE MOSS: Do you think that they should be brought back, Mr Wyeth?

PROS: No, I do not, with respect. I think it is apparent that your Honour was simply catering for the fact that he used that expression that he was frightened. That was another alternative.

JUDGE MOSS: I have left it to the Jury on what I think is a proper and fair basis -- if they come to the conclusion that this was not an accident, they have got to be left with the proper alternative that in some way the Defendant may have thought that because he was about to be overpowered, he may have used the knife to defend himself. I cannot think that that is wrong. I have given the Defendant the benefit of both options, instead of limiting it to just the one. So, I do not think I am going to get them back. I think I have been as fair as I possibly can."

We would comment in relation to those last remarks of the judge that he there has reversed the order of the two defences and appears to believe that he had directed the jury, in effect, that the defendant's primary defence was one of accident, but out of fairness had left a possible case of self-defence for them to consider as an alternative.

19. A question remains, in the light of Mr Wyeth's skeleton argument for this hearing, as to what was, in truth, the nature of the appellant's defence at trial.
20. At the outset of this hearing we asked Mr Wyeth to address us on that matter. He then accepted that the position was as stated by Mr Long, that the appellant's case at trial, in his evidence and as advanced by counsel on his behalf, was a case of accident, but that his evidence had also raised the possibility of an issue of self-defence which it was proper for the judge to leave to the jury.
21. The question, therefore, it seems to us on this first ground is this. Upon the basis, as became common ground at this hearing, that the appellant's real defence at trial was one of accident, was that defence properly placed before the jury, or had that defence been overtaken in the judge's summing-up by a case of self-defence in such a way as to undermine the appellant's true case at trial?
22. Mr Wyeth's submission was that the judge had left a defence of self-defence properly to the jury, and that in dealing with that alternative defence he had structured his summing-up appropriately.
23. Mr Long, on the other hand, submitted that the judge had got it precisely the wrong way round. He had left the matter to the jury on the basis that self-defence was the primary defence and accident was the alternative subsidiary defence. In so doing, Mr Long submitted, the judge had wholly undermined the appellant's defence. The appellant's defence was that, irrational and in drink, he had attempted a robbery which went wrong, and in extricating himself from that robbery had, in the course of a melee in which he was himself under attack, accidentally and without even knowing it caused an injury which he had only learned about the next day. On the other hand, a defence of self-defence suggests that the woundings had occurred deliberately and rationally in reasonable self-defence.
24. It remains to be seen from the summing-up as a whole whether Mr Long's or Mr Wyeth's view of the matter prevails.
25. We pick up the summing-up first of all at page 8, where the judge is directing the jury on the ingredients of a section 18 offence. In the course of directing the jury on the word "maliciously" the judge correctly, at that point, addressed the issue of deliberation or accident. He said:

"Therefore, it has got to be proved that this was done deliberately and not accidentally. If it is an accident, the Defendant cannot be guilty. The Crown must prove that it was done deliberately. That is the use of the word 'maliciously'."

In that passage, therefore, the judge was preparing the ground for a defence of accident or lack of intent. However, the judge immediately went on to address the statutory word "unlawfully" in these terms:

"'Unlawfully' - that is the issue in this case. It possibly is not the only issue, because you have got to be satisfied it was done deliberately, but unlawfully means that the Crown have got to prove that it was not done in lawful self-defence. I am going to give you a direction about that soon."

The judge in that passage indicated, first, that the issue of unlawfulness went to the issue of self-defence only, rather than also to the issue of intent which it would also cover, and said in that context that "unlawfully" was "the issue" in the case, although he then did correct himself and state that the jury would also have to be satisfied about it being done deliberately.

26. The judge then gave a further direction on the meaning of "with intent". He then came back to the question of unlawfulness and said again (at page 9) that he would give in that context a direction on self-defence. This was the second time that he had aligned the question of unlawfulness solely with the question of self-defence.
27. He then went on to deal with the question of alcohol and the relevance of that for intent. Then, at the foot of page 10 of the transcript, he came to the twice anticipated question of self-defence. He said this:

"I am going to go on to the question of self-defence, which I said I would, because it is necessary to give you a direction about it. I know that many of you, when you heard the case opened must have thought to yourselves, 'How can an armed robber, on the staff side of the counter of a take-away chicken shop, armed with a knife, obviously intent upon robbing the shop by his own admission -- how can he avail himself of the defence of self-defence?'."

The judge was in that passage, we think, telling the jury that the case had been opened to them on the basis that it was a case about self-defence. In that we think he was fundamentally mistaken.

28. The judge then went on to give a lengthy direction on self-defence which covers two full pages. In the course of it the judge raised the question whether the defendant genuinely feared that he was about to be attacked. He said:

"So, you need to ask yourselves 'Who was the aggressor here? Was the Defendant genuinely thinking that he needed to use the knife because he was under attack?'"

We think that there had never been any doubt that the appellant, whose plea of guilt to attempted robbery was before the jury, presented himself as the aggressor in the case. It was therefore especially unhappy that the judge went on in the following passage effectively to withdraw the defence of self-defence from the jury when he said:

"If your conclusion is that he is the aggressor and that this claim that he was about to be overpowered is just nonsense, then he cannot avail himself of the defence of self-defence."

29. In that passage the judge presented the appellant's "claim" to be one of self-defence, when it was not, thereby undermining the appellant's real defence, which was one of intent, and at the same time went very far to withdrawing the substituted defence from the jury.
30. The judge then turned to the evidence. In the course of setting out the evidence he was at pains that the jury should understand the evidence of the three main prosecution witnesses, which was that the injuries caused by the knife had preceded and not followed the attack upon the appellant with the pizza shovel and the hot oil.
31. That issue as to the sequence of events was, of course, relevant to the defence of accident just as much as it could have been relevant to a defence of self-defence, because it was more likely that the wounds would have been caused accidentally in the course of a melee than at a time before the melee had started.
32. Then at page 17, having set out the prosecution evidence and before coming to the evidence given by the appellant, the judge gave to the jury a section 34 direction on the basis that the defendant's evidence at trial had not formed part of his interview. He had been advised by his solicitor to give a no comment interview.
33. It was in the course of that section 34 direction that the judge said what Mr Wyeth had highlighted in his skeleton argument, and which we read a little earlier in this judgment (see paragraph 16 above). Thus, the judge began his section 34 direction by telling the jury that "the basis of his case" was that he had used the knife to protect himself against the three men. We think that this is a mis-statement of his evidence and the case that was made for him at trial.
34. The consequence was that the judge directed the jury that they could, subject to the terms of a full section 34 direction, derive an inference against the appellant from the fact that his purported case of self-defence had not been mentioned in interview. We think that this is in itself a misdirection which arises from the judge's failure to identify the defendant's true defence.
35. The judge then came to the appellant's evidence and reminded the jury of his evidence that, at a time when he was trying to get away and the knife was still in his hand, he had used both hands to push Yogesh away (see paragraph 17 above). It was slightly after this point that the judge said this:

"At one point in cross-examination he was suggesting that Yogesh could have impaled himself on the knife. I do not think he used the word 'impale', but he was saying that Yogesh came forward at him. Well, that goes to the question of whether the wound was done deliberately, or possibly accidentally, but it is something that he suggested himself. You are going to have to ask yourselves whether there is any truth in that, or whether it is something he is saying now to try and explain away that which is otherwise unexplainable. Although he was reluctant to concede that he had caused the injury, in the end he effectively said, 'I can't argue that I did, but I didn't see the knife go through his arm. I had no idea that I'd done it, and I don't remember it happening'."

That evidence indicates, amongst other things, that the defendant's true defence was one of accident and not one of self-defence. Unfortunately, the way in which it was mentioned by the judge seems to indicate that this was merely a fall-back alternative defence which arose almost incidentally out of something said in cross-examination; whereas it was in fact his true defence. On the contrary, it was the alternative defence of self-defence which the judge left to the jury as the primary defence which, at its highest, was something which had arisen incidentally out of the appellant's evidence as a possibility for the jury to consider if the judge in his discretion thought it right so to direct them.

36. The judge concluded on the last page of the summing-up in these terms:

"Well, that is his case, members of the Jury. He does not accept that he stabbed Yogesh deliberately, and says that the only reason he was holding the knife in the way that he did was because he felt that he was about to be, himself, overpowered and assaulted. That is the real issue that you have got to concentrate your minds on."

In that passage the judge mentioned the two defences. He mentioned them there at least in their primary and secondary order. Unfortunately, the issue of intent was immediately overtaken by the issue of self-defence, which the judge then described as "the real issue". Moreover, the judge there misstated the effect of the defendant's evidence, which was that he did not have time to think of dropping the knife.

37. In sum, we have no doubt that, in error or misunderstanding, the judge misrepresented the appellant's case to the jury. The only case which the appellant, on a fair understanding of his evidence as a whole, put before the jury was that the wounding of Yogesh had been unintentional; the act of an irrational, drunken man wielding a knife only to give threat to his robbery, but without the intent of causing any harm, let alone grievous bodily harm. Moreover, that was the only case put before the jury on his behalf by Mr Long.
38. It may be, to put it at its highest, that in a few words of his evidence the appellant could have said something that raised the possibility that, if his primary case was rejected, a secondary defence could be identified: that he had done what he did deliberately but in a spontaneous reaction to being set upon by the three men. But that nevertheless was not his case. The issue of the sequence of events was relevant to his case of lack of intent, for it was more likely that an accidental wounding could occur in a melee than before that melee had begun.
39. If a self-defence direction was to be given, that sequence issue would again be relevant, but it was not exclusively relevant to a self-defence direction. It was equally relevant to the appellant's case of unintentional injury.
40. In our judgment, the judge should have discussed his summing-up with counsel in advance. If he had done so, defence counsel would have urged him not to give a self-defence direction at all, or, if the judge nevertheless considered that he was obliged to do so, that he should do so only as very much a fall-back secondary alternative and not as a case advanced by the appellant himself, but simply as a defence which the law said might be open to him on the evidence. The judge in such a case would have been urged by Mr Long that any such direction would be a brief compendious direction appropriate to such a secondary case left to the jury only as an obligation of law, and not as the defendant's own case.
41. As it was, the judge directed the jury in the completely reverse manner. He repeatedly told the jury that self-defence was the defendant's case; indeed, that it was the "basis" of the defendant's case or the "real issue" in the case. The real defence of lack of intent was left as a secondary alternative case, as something which had simply emerged from some remarks made in cross-examination.
42. In directing the jury that the real defence was one of self-defence, the judge effectively undermined the real case of lack of intent, but also inevitably undermined the defence of self-defence as well, precisely because there was so little to support it, either in the evidence or indeed in the underlying facts of the case and the shape of the trial and in the defendant's own counsel's submissions.
43. The effect of all of this was, in our judgment, essentially to deprive the defendant of his real defence. As such the summing-up as a whole was fundamentally awry, it amounted to a misdirection and ultimately deprived the defendant, we think, of a fair trial. In those circumstances, we do not consider that the conviction can be regarded as safe; nor on that hypothesis has Mr Wyeth suggested that it could be so regarded. This appeal must on that ground alone therefore be allowed and the conviction quashed.
44. In the circumstances, we can deal relatively briefly with the remaining grounds of appeal. Essentially, grounds B, C and D compendiously amount to a submission that the appellant did not receive a fair trial and that this was because the judge was either biased, or at any rate showed an appearance of bias.
45. The points which, given the importance of the submission we mention in this judgment, are briefly these. In the course of dealing with the appellant's evidence the judge had described as "arrant rubbish" the appellant's remark that he did not have time to drop the knife when confronted by the three men. The CCTV video showed, as is accepted by Mr Long, that that was not correct. He did have time to drop the knife. But the appellant immediately went on, in answer to the judge's own questions, to explain his comment by saying, in effect, that he did not have time to think about dropping the knife. We think that the difference between saying he did not have time to drop the knife and did not have time to think of dropping the knife is so little that the judge's remark that the first was "arrant rubbish" was inappropriate.
46. It is well recognised (see the case of R v Iroegbu, mentioned in Archbold at paragraph 7-68) that a judge should not indicate to the jury his own disbelief of a witness's evidence, let alone the evidence of a defendant himself. That will not, by itself, necessarily lead to an unsafe conviction, and did not in the case of Iroegbu, but it is an inappropriate and unsatisfactory remark to be made.
47. Mr Long conjoins this with his third ground, which relies upon a remark which the judge made in the absence of the jury following an application by the prosecution to cross-examine the appellant on his own prior convictions. This was, we are told, an application which the judge had himself suggested that the prosecution make. When made, however, it was rejected by the judge without even calling upon the defence. The judge said:

"I think the prejudicial effect is going to be such that it would be impossible thereafter for him to have any sort of fair trial, even though he probably does not deserve one, but having said that to allow the jury to hear the circumstances of that conviction, of which we only have brief details, I think would be unfair."

48. The judge's flippant and sarcastic remark that the appellant probably did not deserve a fair trial was, we think, most unfortunate. It was a remark which should never have been made. When, on the next day following the completion of the appellant's cross-examination, the appellant was able to tell Mr Long's instructing solicitor of how hurt he had been and how badly affected he had been in the course of his cross-examination by that remark, and when those comments were relayed to Mr Long and Mr Long had raised them before the judge, the judge did, it is fair and appropriate to point out, apologise and withdraw those remarks. He said:

"I am sorry if I upset him. It was an unwise comment and I entirely withdraw it."

That was a necessary and most appropriate apology.

49. In fairness to the judge, he did make his remark in the very course of saying twice that the reason he was going to deny the prosecution an application to cross-examine the appellant on his previous convictions was out of the need to be fair to the appellant. So it is quite plain that the judge obviously had, as we accept he did have, the obligations of a fair trial in his mind. He was not biased. Nevertheless, the remark should never have been made, even if it was made in the absence of the jury.
50. Mr Long's fourth ground, closely connected with this, is that the appellant had been so upset by this remark, which he heard from the witness box close to the bench, that he was, as it were, put off his stroke during his cross-examination, which he was at that very point in the midst of. We can understand that that may well have been an effect.
51. In the circumstances, we do not need to decide this appeal on those further grounds, B, C and D, and we do not hold that for those reasons the appellant did not have a fair trial or that the judge was biased or gave the appearance of bias, although we have to accept that the inappropriate remarks that we have referred to clearly provide fuel for Mr Long's cogent submissions. Nevertheless, we have mentioned those further grounds in order to stress the importance of avoiding any unfortunate remarks of this kind.
52. We have already determined that on the first ground, ground A, the conviction must be quashed as being unsafe and this appeal allowed.
53. LORD JUSTICE RIX: Mr Wyeth, have you any further instructions?
54. MR WYETH: We have. Those sitting behind me have made a telephone call to the senior lawyer concerning this case at the CPS. My Lord, I have communicated the Crown's decision, and I believe it is a course that my learned friend would urge upon the court. My Lord, it is to substitute a conviction under section 20 in this case, if that is an appropriate course.
55. LORD JUSTICE RIX: Thank you. Do you want to say anything about that?
56. MR LONG: My Lord, it appears that it fulfils the criteria of section 3 of the Criminal Appeal Act, which is entitled "Power to substitute conviction of alternative offence". I do not believe I can assist further.
57. LORD JUSTICE RIX: We have discussed this and we are content to exercise our powers under section 3 of the Criminal Appeal Act 1968. We think that a conviction under section 20 should be substituted. Our sentence in respect of that conviction will be one of three years' concurrent, unless there is anything further that you would like to say.
58. MR LONG: My Lord, I am very much obliged.
59. LORD JUSTICE RIX: Thank you both for your assistance.