England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		24th August 2005

1. LORD JUSTICE GAGE:  On 14th February 2005 at the Inner London Crown Court this appellant was convicted of wounding with intent to do grievous bodily harm (count 1 on the indictment).  The jury were discharged from giving verdicts on alternative counts of unlawful wounding and having an offensive weapon.  On 14th March 2005 the appellant was sentenced to four years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. 
2. He now appeals against conviction by leave of the single judge.
3. There is before the Court only one ground of appeal and it centres on what are alleged to have been prejudicial remarks made by the judge during the course of the hearing. However, very recently, the Court has received an application made on behalf of the appellant to call fresh evidence.  This matter requires further investigation by both the appellant's legal team and the respondent.  It has therefore sensibly been agreed that we should hear the appeal on the ground before us and leave over the question of any application for further fresh evidence to be adduced pending the result of this appeal.
4. The case for the prosecution was that on 27th May 2004 the 17-year old victim, DR, and his 14 year old brother were walking their dog on Primrose Hill.  They came across a group of youths which included the appellant.  The initial confrontation was between DR and the appellant.  That confrontation escalated into fighting involving a number of other youths present.  The prosecution alleged that during the fighting some of the group, including the appellant, produced knives and that it was during the fighting that the appellant stabbed DR in the back.
5. The appellant accepted that he was present and that the confrontation had started when he and DR bumped into each other shoulder to shoulder.  He denied possessing a knife and stabbing DR.  He said that he had been punched to the ground by DR and by the time he got up the fighting had started.  His case was that it was one of mistaken or wrong identification.  It was common ground that the identification was one of recognition, DR and the appellant knowing each other.
6. In view of the grounds of appeal it is unnecessary to go into any detail of the evidence given at trial, suffice it to say that DR's evidence was that as he and his brother were walking his dog at about 8 o'clock in the evening he saw the appellant, whom he knew, with about seven other people.  He said that the appellant came over to him and started lightly headbutting him as if wanting to fight.  He defended himself by pushing the appellant, and knowing that the appellant wanted to fight got in the first punch.  The appellant fell on to his backside, but got up and took a knife from the right pocket of his tracksuit.  DR said that he was surrounded by two others, both of whom had knives, but he did not see where those knives came from.  He said two people started to attack him, punching him in the face.  The appellant then came from behind and stabbed him in the back.  As soon as he felt the prick of the knife, he turned round and saw the appellant with the knife in his hand.  There was no one else behind him at the time.  His brother, DE, was on the ground being kicked by other members of the group.  He said that he was 100 per cent sure that the appellant had stabbed him and that he had known him for a long time.  After the incident he and his brother returned home.  An ambulance was called and it was discovered that he had a broken cheek bone and a stab wound to his back to the left of his spine.  On 6th July 2004 at a video identification parade DR identified the appellant as the person who had stabbed him. 
7. His brother, DE, gave evidence but was unable to say what had happened after the initial headbutting of DR by the appellant.  He knew what the appellant looked like and could pick him out of a crowd.  He did not see him with a knife at any time.  After he himself had been knocked to ground, he did not see what happened to his brother. 
8. The appellant gave evidence that on 27th May 2004 he was riding his bicycle together with his friends.  He saw the two brothers coming down the hill.  He accepted that he and DR bumped into each other shoulder to shoulder.  He said that DR punched him to the side of face and he fell to the ground for a couple of minutes.  He denied headbutting DR.  When he got up, he could not see what was happening, but his friends were having a fight with DR and his brother.  He denied producing a knife and said he had never carried one with him.  He said that he was angry with DR for punching him and that he tried to punch DR but did not connect.  He stepped back and said to his friends, "Let's go, let's go".  He knew he was in trouble and just wanted to leave the area.  He said he was unable to name his friends involved in the fighting because he would get into trouble when he got home.  On reflection he accepted that DR had been stabbed.  He denied it was him who had carried out the stabbing.  He said that he knew the brothers and that he and DR did not get on.
9. In the course of the prosecution's evidence a woman police officer, PC Webster, gave evidence about her attendance at DR's home on the evening of the incident.  She described DR and DE as being hesitant about going into any detail and appearing to be in shock.  In the course of her cross-examination she was asked by counsel questions about a CRIS log which had contemporaneously recorded her recollection of the events later in the evening when the matter was still fresh in her mind.  In evidence she stated that the two brothers had given a nickname for DR's assailant as "spaghetti head".  She agreed that there was no reference to such a nickname in the CRIS log. 
10. As a result of cross-examination counsel for the prosecution sought to introduce in re-examination a further written document in the form of a CAD report.  Mr Tilbury, counsel for the defendant at that time and counsel who appears on the appellant's behalf before us, objected to this course and invited the judge to hear submissions in the absence of the jury.  The exchanges between Mr Tilbury and the judge which followed formed the basis for the now single ground of appeal.  It is submitted that remarks by the judge in the presence of the jury and also in its absence were such as to deny the appellant a fair trial.
11. A further ground of appeal in the notice of appeal contends that the judge was wrong to permit re-examination in respect of the CAD report.  As a result of the observations of the single judge that ground of appeal is not now pursued.
12. The exchange between counsel and the judge in the material parts are as follows.  We take them in the order in which they appear in the transcripts: first, in volume 1 of the transcript dealing with the re-examination of counsel for the Crown, Mr Morley, of the woman police officer.  The re-examination starts with a reference to the fact that the officer was going to be asked about matters which would not ordinarily be capable of being admissible before the jury.  At that point Mr Tilbury said to the judge:

"Your Honour, I think a point of law has arisen at this point. 

Judge Prendergast: I am not having the jury misled by you. 

Mr Tilbury: No, of course not.  That would be my last intention. 

Judge Prendergast: Do please continue."

13. The submission and exchanges then continued in the presence of the jury contrary to what is the usual practice, namely that the jury should be asked to retire while legal points are discussed between the judge and counsel.
14. Having made his submissions counsel for the Crown sat down, and Mr Tilbury (page 4 letter H) said to the judge:

"If my learned friend is going to take this witness through a CAD report -- "

Before he had time to go further the judge intervened:

"Mr Tilbury, you have opened up this avenue. 

Mr Tilbury: Your Honour, I have in respect of one document. 

Judge Prendergast: You cannot have your cake and eat it."

That comment was repeated in the form of the judge saying that counsel, Mr Tilbury, had opened up that area of investigation. 

15. The exchanges between counsel and the judge continued until a point where the judge interrupted Mr Tilbury in his submissions, saying to him:

"You are content with half truths, are you?"

16. A little later, after one other submission from counsel and observation from the judge, he then decided that the time had come for the jury to retire and for the matter to be continued in the absence of the jury.  His opening observation to Mr Tilbury when the jury had retired was, interrupting Mr Tilbury:

"you are defending at public expense a 17 year old of good character."

We are bound to say that that seems to be an implication that counsel was wasting time, something which was plainly, in our view, unjustified.

17. At all events, the submissions and exchanges between counsel and the judge continued.  In due course, following those submissions, the judge in a short comment, rather than a ruling, permitted re-examination of the witness in respect of the CAD document, but only to a limited extent.  It follows that to some extent the submissions were successful.
18. The jury returned at some stage which is not certain, but following those exchanges Mr Tilbury made a submission to the judge that the jury should be discharged on the basis that the prejudice caused by the judge's remarks was incurable and it would be unsafe for the jury to continue to try the case.  The judge summarily dismissed that application in these terms:

"Thank you.  It is an application which I refuse.  May we please have the jury."

19. The same day counsel, Mr Tilbury, for the appellant sought to call in evidence the appellant's mother.  There was a short exchange between counsel and the judge about whether it was proper or not for the witness to be brought into court by counsel's instructing solicitors, or whether the usher should have been left to call the witness into court.  Nothing particularly turns in relation to those exchanges, although it is at least possible that the jury might have got the impression from the exchanges that the defence were in some way improperly bringing the witness before the court.  But at all events, the witness was called and examined in-chief by Mr Tilbury. 
20. There came a stage during the course of her evidence when there was a further intervention by the judge.  It occurred in this way.  At page 8 of the transcript of volume 3, letter B, the question was asked by Mr Tilbury:

"Pause there.  So he [the defendant] has come in upset.  What then happened? 

Answer: He sat down opposite to me, and I said, 'What's wrong?' cos I knew he was upset, and he goes 'Nothing'." 

21. Counsel for the prosecution, then Mr Morley, said:

"Well, just pause there.  My learned friend will be aware of the hearsay provisions, and also, where it arises, the inadmissibility of previous consistent statements, the self-serving statements." 

Perhaps a warning shot, whether necessary or not.  Mr Tilbury then said:

"What did you observe, if anything -- "

to which the judge interjected:

"Mr Tilbury, do you take any notice of anything that anybody says to you?"

22. That completes the summary of the matters which form the basis of the complaint by the appellant in this case. 
23. The grounds of appeal can be shortly stated.  It is submitted on behalf of the appellant that the judge's remarks in the presence of the jury during the course of the submissions were such as to prejudice the defence.  The observations that defence counsel was trying to mislead the jury and that he was content with half truths, it is submitted were highly prejudicial to the appellant's case.  They were improper and unnecessary and may have adversely affected the jury's view of the defence.  In the circumstances, he was denied a fair trial.  A further ground is relied on, namely that the judge's apparent animosity to defence counsel and the remarks to which we have referred undermined the appellant's faith in the fairness of the trial and his confidence in his trial counsel.
24. So far as the respondents are concerned, Miss Hunter, who was not trial counsel, has very fairly conceded that the remarks to which we have referred ought not to have been made by the judge and plainly ought not to have been made in the presence of the jury.  In her skeleton argument, Miss Hunter has sought to support the conviction in this case on the ground that the case was a strong one and that the verdict of the jury was not unsafe.  However, during the course of argument she fairly did not press those points.
25. Both counsel in their skeleton arguments have referred the Court to decisions of this Court which deal with cases where judicial observations have been said to render the verdict of the jury unsafe.  It seems to us that in this case the issue for this Court is a simple one.  First, we have to decide whether the observations made by the judge went beyond the bounds of what is acceptable, albeit robust, judicial comment.  If the answer to that question is yes, may those comments, individually or cumulatively, have compromised the appellant's right to a fair trial thereby rendering the verdict of jury unsafe.
26. We have no hesitation in concluding that the answer to the first question is that the remarks made by the judge during the course of hearing counsel for the defence's objections to the line of questioning in re-examination did go beyond what was acceptable.  Before Mr Tilbury had any opportunity to explain the nature of his objection, the judge intervened saying, "I am not having the jury misled by you".  The subsequent remarks that counsel was trying to have his cake and eat it, coupled with the observation in the presence of the jury "you are content with half truths", were, in our judgment, unnecessary and unacceptable.  They should not have been made and certainly not made in the presence of the jury. 
27. Subsequently during the course of Mr Tilbury's examination of the appellant's mother the judge made the further remark, to which we have referred, namely, "Mr Tilbury, do you take no notice of anything that anybody says to you?"  In our judgment, this latter remark was also unnecessarily offensive and unacceptable.
28. As we have said, Miss Hunter for the respondent has not strenuously sought either to defend or justify the remarks of the judge.
29. On the second question of whether these interventions render the verdict unsafe, we are quite satisfied that they do.  To suggest that the defence was endeavouring to mislead the jury and was content with half truths, in our judgment, was likely to have a very damaging effect on the defence in the eyes of the jury.  The fact that the judge in his summing-up gave the jury the conventional direction about rejecting his views if he seemed to have expressed any opinion with which the jury did not agree was not in the circumstances of this case sufficient to cure the mischief of what he had said.  In our judgment, the prejudicial effect of his remarks, coupled with the animosity towards counsel implicit in them, may very well have been considerable.  We note that there was during the course of subsequent exchanges and before the summing-up no expression of regret or a withdrawal of those remarks by the judge.
30. Further, the fact that the case against the appellant was or may have been a strong one is not, in our judgment, a reason for dismissing the appeal.  This appellant, as are all defendants, was entitled to a fair trial.  In our judgment, there is a real risk that the remarks complained of may have unfairly prejudiced the jury against the appellant thereby compromising the fairness of the trial. 
31. Accordingly, we conclude that the verdict was unsafe and it must be quashed.  It will therefore be unnecessary for the appellant to pursue any further grounds of appeal raised by the recent discovery of fresh evidence.
32. Perhaps we should also observe that this case once again demonstrates the good sense of a judge hearing submissions by counsel in the absence of the jury.  If this practice is followed, it is much less likely that unguarded remarks by a judge will prejudice a trial.
33. For the reasons that we have endeavoured to express, the conviction must be quashed.
34. LORD JUSTICE GAGE:  Any applications?  Very well, thank you very much.  There should be a section 39 order in this case in respect of both the complainant, his brother and the appellant.