England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE MEDAWAR QC AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 July 2005

Lord Justice Judge:

1. On 24th February 2005 in the Crown Court at Snaresbrook, before HHJ Medawar QC and a jury, Trevor Dickens was convicted of wounding Levant Karadag with intent to do him grievous bodily harm. He also pleaded guilty to theft. He was sentenced to 5 years and 9 months imprisonment for wounding with intent, and 3 months imprisonment concurrent for theft. His appeal against his conviction for wounding with intent was allowed on 20th July. We shall now give our reasons.
2. The essential facts arose from an incident on 13th September 2004. Dickens entered Sainsbury's store in Camden, where the store manager, Mr Karadag, observed that he was stealing bars of chocolate, which he was hiding in his coat. Mr Karadag alerted other members of the staff, and then waited outside with a security guard for the appellant. As the appellant left the store, Mr Karadag and the security guard escorted him back in to the baler room. The appellant and Mr Karadag remained there, while the police were called by another member of the staff. Taking it as neutrally as possible, the appellant seized hold of a jam jar and a physical altercation ensued between the two men, during the course of which the complainant received a very nasty cut to his face which required 16 stitches.
3. The prosecution case was that once the two men were in the baler room the appellant became agitated. He picked up a jam jar, and broke it on the sink. Frightened that the appellant was going to throw the broken jar at him, Mr Karadag put a trolley between them. The appellant then pushed the trolley at Mr Karadag, and struck him in the face with the broken jam jar.
4. The defence case was that once they were together in the baler room, Mr Karadag pushed a trolley at and into the appellant. He in his turn picked up a jam jar to ward him off. As he tried to escape, Mr Karadag seized hold of him and they fell to the ground, when the jam jar broke and Mr Karadag sustained his injury.
5. The grounds of appeal gave rise to two matters for consideration. The first was whether the judge was wrong to have failed - quite deliberately as we shall see - to give an appropriate direction to the jury in relation to self defence. The second is whether the judge's conduct of the trial was unfair to the defendant, so unfair that the conviction was unsafe. In her oral submissions, Miss Lockyer approached this aspect of the appeal with great circumspection. The unfairness she relied on was directly linked to the way in which the judge approached the issue of self defence, and his consequent directions to the jury. Having heard her submissions, Mr Cranbrook on behalf of the Crown, sensibly acknowledged that they had genuine force, and did not contest the appeal.
6. In these circumstances we need not set out a long narrative account of the evidence given by the various witnesses called at trial.
7. The defence case statement read:

"The defendant denies at any point wounding the alleged victim intentionally. The defendant does not dispute being involved in a confrontation with the alleged victim and other persons on the date in question. … The defendant accepts that at one point he showed a glass jar in order to defend himself. He denies at any point making contact with anyone with the glass jar intentionally."

8. Before the jury was empanelled, but in the presence of the defendant, the judge asked to see the defence case statement. Having read it, he enquired of counsel what the defence was. She responded, "It is self defence, your Honour".
9. This exchange then followed.

"The Judge: It is certainly not self defence.

Counsel: And accident.

Judge: It is certainly not self defence. It may be - it appears to be what this document is saying is that it is some sort of accident.

Counsel: Yes, it is …

Judge: Where do you expect that to go?

Counsel: Your Honour: the defendant's case is that as they were struggling together they fell onto the floor and the jar broke and that's how the injuries were caused.

Judge: I've never heard of such rubbish …"

10. In short, the judge told defence counsel in the presence of her client, and before having heard a single word from the prosecution, that the defence that the complainant's injuries had occurred accidentally was nonsense, and that, on the basis of the defence statement, self defence certainly did not and could not arise. We can understand the judge's view that the defence case statement was insufficiently explicit, but the way in which he expressed himself can hardly have left the defendant, or for that matter any reasonable observer, in any doubt that he, the judge who was to preside over the trial, had already concluded that the defence was, and would be, and we deliberately use colloquial language, a complete waste of the court's time.
11. The exchange continued with the judge drawing attention to the fact that the defendant had what he described as "an appalling list of previous convictions, many of which are for matters of violence and having knives, again and again". He suggested that counsel for the Crown should reflect whether to serve a notice under the Criminal Justice Act 2003 of his intention to adduce the defendant's previous convictions in evidence. As part of the judge's duties of case management, he was perfectly entitled to invite counsel for the Crown to consider something which may have been overlooked, but this particular exchange occurred in the immediate aftermath of his deprecatory comments about the defence, and was accompanied with his own view about the "appalling" nature of the defendant's criminal record. Again, that intervention in that context, and the way in which it was phrased, would have confirmed the impression that as between the prosecution and defence the judge was not entirely neutral. In the result the Crown did not give the appropriate notice, and the case proceeded without reference to the appellant's previous convictions.
12. A number of matters arising from the judge's interventions during the evidence in chief of the complainant were raised for consideration, but they add nothing to the overall broad complaint, and certainly nothing of significance.
13. We shall therefore come directly to the defendant's evidence, and in particular the cross-examination. We need to set this out in some detail.

"Counsel: So this injury to Mr Karadag was purely accidental, was it?

A: It was accidental.

Q: No question here of you injuring Mr Karadag in self defence?

A: We fell to the ground. That's how he sustained his injuries.

Q: Just answer my questions, Mr Dickens.

A: Sorry.

Q: This was a pure accident? There was no question of you deliberately hitting Mr Karadag but in self defence? You know the difference between an accident and self defence?

A: I do. It was in self defence. We fell to the ground and that's how he sustained the injury.

Q: Now, think very carefully before you answer my next question, Mr Karadag (sic). Was there a time in your mind when this was self defence?

A: No.

Q: You have always believed, have you, in your mind that this was an accident?

A: Correct."

14. The problem with this line of cross-examination is that it was seeking to compartmentalise two legal concepts without recognising that the appellant could have been acting in reasonable self defence when the accident, as he described it, happened. In the result, in the absence of the jury, counsel sought the judge's permission to cross-examine the defendant about the defence case statement. The judge agreed.
15. The cross-examination continued with counsel for the Crown drawing the defendant's attention to the defence case statement and referred to the passage where the text reads that the defendant accepted "that at one point he showed a glass jar in order to defend himself". It was put to the defendant that he was waving the glass about, "at any rate, to defend yourself". He denied waving the jar about. He had held it in his hand. He was then asked what he was intending to do with it and he said:

"I was scared. It was just to keep him away from me because I had already been hit by this trolley."

16. The defendant continued that the trolley had been pushed into him and he pushed it away, and he repeated that Mr Karadag had pushed the trolley into him and he tried to get away while holding the jam jar in his hand. He was then asked how Mr Karadig came by his facial injuries. He said:

"I already explained this, you know. It was when we fell that I believe that he got this cut on his face. That's the only way that I can see that he has sustained this injury."

17. He explained again that he had tried to get past the trolley and that they had struggled and he fell over. In the course of the struggle Mr Karadag had grabbed hold of his hands, and in the struggle they both fell and the jar must have broken when it hit the floor.
18. He reasserted that he was "scared" for his safety because he "had already been hit by the trolley, you know, and I didn't know what these other security was going to do, as well." It was put to him that his defence was that Mr Karadag had decided to beat him up. He answered:

"He pushed the trolley into me. He didn't actually beat me up, but together they beat me up, yes."

19. There was no re-examination. The judge then asked some questions because, in his view, the full case had not properly been put to the defendant. He was entitled to do so, although perhaps it might have been preferable for him to invite counsel for the Crown to reflect on whether he had put the allegation with sufficient clarity. One complaint we note but need not resolve is that the judge used emotive language, but at the end of these three questions, the defendant remained adamant that the complainant had pushed the trolley into him "first".
20. Before the jury was addressed on behalf of the defendant, and in their absence, there was a brief discussion between counsel and the judge. She immediately conceded that she could not oppose a "section 34 direction". But she raised the question of any alternative verdict on s 20.
21. The judge responded:

"Certainly not, the way this case has been run this is not the time to raise it, the time to have raised it would have been with the prosecution before we started, to career on with a false suggestion of self defence which plainly it was not and then to accident I am afraid you pay for the consequences, the defendant does, this is quite plainly been section 18 from start to finish."

22. The judge then rose, and when the court reconvened, before counsel addressed the jury, he added that it was "obvious there will be no self defence direction".
23. In our judgment it was legitimate for counsel for the defendant to invite the judge to consider a s 20 direction. S 18 alleged a specific intent. On the Crown's case the appropriate inference may well have seemed obvious, and indeed, as Mr Cranbrook explained to us, that was the only verdict he was seeking. In any event, on this point, the verdict of the jury did away with any point arguable on appeal. Our concern is the manner in which the judge dismissed the issue legitimately raised by counsel. Moreover, at the end of the evidence the issue of self defence was now described by the judge as a false suggestion, which plainly did not arise for consideration, and by implication at any rate, never had done. As to accident, the judge made no comment beyond implying that the issue of accident was raised at a late stage after self defence had been abandoned.
24. When he came to sum up, the judge was as good as his word. No direction of any kind was given about self defence. The only issue left to the jury was accident. If what happened to Mr Karadag may have been an accident the Crown had failed to prove that the wound inflicted by the defendant had been inflicted unlawfully. However the judge directed the jury that in considering whether the injuries were or may have resulted from an accident, at an earlier stage, and until December 2004, the defence case had been that the defendant was acting in self defence. The judge directed the jury:

"He went on to say that this was not in self defence. It was an accident. He admitted that until December 2004 his case was that he had been acting in self defence. He was then admitting that he had shown a glass jar to defend himself. He said he was simply trying to keep the manager away."

25. In short, the judge directed the jury that the defence case statement raised self defence, a suggestion which he had dismissed peremptorily at the outset of the trial with the words, "Certainly not self defence". This was no longer pursued and the defendant was admitting that he had changed his defence to accident which, so far as the judge was concerned at the outset, was "rubbish". Nevertheless, "rubbish" or not, accident was how the judge himself had understood the defence case statement itself.
26. In reality, it was very difficult to disentangle from the evidence of the defendant taken as a whole that he was indeed abandoning self defence and focusing exclusively on accident. Read fairly his evidence suggests that he was asserting that he found himself in a frightening situation, in which, because Mr Karadag had pushed the trolley in his direction, he picked up a jar, and then became entangled in a struggle in which Mr Karadag's injuries occurred. The infliction of the actual injuries was accidental, but it did not follow that his conduct in the moments leading up to the injury could not properly be described as an attempt to act in self defence. In this particular case it was extremely difficult to disentangle the legal defences of self defence and accident, and unwise to approach the facts as if they fell within mutually exclusive compartments. Both should have been left to the jury. Moreover although the defendant's evidence was indeed problematic, and confusing at times, one criticism of his credibility which could not fairly be made was that his evidence to the jury was to be disbelieved on the basis that his defence had been recently fabricated, at any rate at some stage after December 2004 and before the trial in February 2005. As the defence case statement made clear he asserted that he did show the glass jar "in order to defend himself". We do not read his evidence as suggesting anything different.
27. We are troubled about the way in which this entire case was conducted by the judge, but in particular the peremptory and intemperate language with which he dismissed the defence at the very outset of the trial. This led to the subsequent errors outlined in this judgment, and culminated in the omission from the summing up of any reference to self defence (when such a direction was required) and a devastating, but inappropriate comment, which would have utterly discredited the only defence which the judge left to the jury.
28. In these circumstances we concluded that the conviction was unsafe. The appeal was accordingly allowed.
29. At the conclusion of the hearing we indicated our decision, and allowed the appeal, but having heard counsel, concluded that we should order a new trial. Directions were given accordingly.