England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		6 November 2006

LORD JUSTICE RICHARDS:

1. This is an appeal brought by leave of the single judge against the appellant's conviction on a count of causing grievous bodily harm with intent. He was convicted of that offence on 16 March 2006 in the Crown Court at Chester after a trial before Her Honour Judge Case and a jury. He was subsequently sentenced to 61 months' imprisonment, with 55 days spent on remand to count towards the sentence.
2. The appellant and the complainant, Mr Michael Petty, were neighbours. The evidence was that the appellant was a large man, weighing about 18 stone, whereas Mr Petty was small, weighing about 11.5 stone.
3. On 17 September 2005, the appellant called at the complainant's house and there occurred an altercation during which Mr Petty was seriously injured. The appellant was upset with the complainant because he believed him to be responsible for the death of his dog. The prosecution case was that the appellant went to the complainant's house with the intention of causing him serious harm and assaulted him. The defence case was that when the appellant called at the house the complainant attacked him (the appellant) and the appellant then threw the complainant out of his way in self-defence.
4. Mr Petty gave evidence at the trial that his partner, Lisa Bailey, answered the door to the appellant. Mr Petty then went to the door and saw the appellant. Unfortunately, he could not recall anything further until he woke up in hospital.
5. Miss Bailey gave evidence that she and Mr Petty were watching television together when there was a knock at the door at about 11pm. She opened the door and saw the appellant. He asked, "Is he in?" She went to tell Mr Petty that he was wanted and she went into the kitchen. When she came out she heard noises like choking and groaning coming from outside. She went to the front door. The appellant was standing there and said to her, "If you phone the police the same thing will happen to you". He also said that the complainant had left his dog for dead. She had no idea what had happened, but went outside and saw Mr Petty lying unconscious on the grass in a very bad state with blood all over his face, his eyes badly damaged and blood coming out of his mouth. He was groaning, snorting and trying to get up. In cross-examination she said that she went back into the house for a towel to stem the bleeding. When she returned a man she knew as "Stretch" was with the complainant, bending over him. It was clear from other evidence that Stretch was a friend of the appellant, called Carl Davis. Miss Bailey said that Stretch helped her to hold Mr Petty still. She saw the appellant go inside his own garden and heard him tell Stretch, "Just leave him". Shortly afterwards the police and ambulance arrived.
6. The next witness was a Portuguese woman by the name of Marta Durao, who was a neighbour. She said that on the evening in question she was in her bedroom when she heard a big noise. She turned off the light, opened the window and looked out. The account she gave in evidence in chief was that she saw two shadows, one man beating another with a punch. She was not sure if it was more than once. She thought that the aggressor was big with a shaved head and wearing a white T-shirt. He looked like "Mr Muscle Man", but she could not be sure. The person receiving the blows was slimmer and smaller. She did not see what happened next, but the man who was punching stopped and let the other man go. She saw the man who received the punch go to the ground. At that point she yelled to the person to stop. He stopped and left. She thought that he shouted something back, but could not be sure what he had said. Asked further questions in cross-examination, she said that it was very dark outside and that it all happened very quickly. She was not sure of the order in which things happened. The larger man had hold of the smaller man, but she was not sure with which hand. She thought there was a punch to the face. She did not think she saw just a hand to the face, but that was a possibility. She was not sure what the larger man shouted when he walked away. She was not sure if he had made a gesture.
7. The way Miss Durao responded to questioning prompted two applications by the Crown to have her treated as a hostile witness. The first, in the course of her evidence in chief, was refused by the judge. But the judge acceded to the second application, made at the end of cross-examination. This enabled the Crown to cross-examine Miss Durao in turn by reference to her written witness statement. In that witness statement Miss Durao stated clearly that she saw the large man punch the other man twice in the face. The victim's head went backwards and hit the wall. He then slid down the wall and looked as if he was knocked out. It was at this point she started to think the attacker was "Mr Muscle Man" because he was tall and of large build. She had seen him many times and knew he lived at number 5 in the same road. The attacker then dragged the victim onto the lawn at the front of the house and continued to punch him. Miss Durao opened the window and shouted to him to stop. He stopped and started to walk away. She heard him say to the victim something like, "If you turn me in to the police I'll kill you". He then said, "You will pay", pointing in a circular motion around the whole street. She watched him walk up the street and into the garden of number 5. She could see that the victim was badly injured. The statement also said that when she witnessed the attack she did not see the victim offer any resistance. The attacker was a lot bigger and the attack was very one-sided.
8. Taken through that witness statement, Miss Durao agreed that the majority was true, but said that she could not be sure about the particulars of the assault. She said that certain matters she had mentioned had been omitted from the statement, that certain words had been used of which she was unaware and that certain minor details had been added by the police officer taking her statement, although she accepted that she had made one correction before signing the document. In further cross-examination she said that she had felt pressured to give a statement, that she had been very tired, that the officer had read the statement through very quickly before she signed it, and that she did not fully understand the declaration of truth.
9. The next witness was Joshua Chapman, whose home was only 15-20 metres away from the complainant's. On the evening in question, he was in his living room when he heard a loud bang, like someone hitting a wooden fence. He looked outside and saw the appellant raising his fist to punch down towards the ground. The appellant was on a triangle of grass but he could only see the top part of his body because the area was enclosed by the fence. Mr Chapman did not see how much force was used, but he saw the appellant drive down by way of a punch. He said that the appellant then stood up and walked to the centre of the road. He looked round and shouted something. Mr Chapman went outside and saw the complainant lying on the grass area unconscious.
10. It is unnecessary for us to deal with the remainder of the prosecution evidence, save to note that in his police interview the appellant gave an account through a prepared statement read by his solicitor in which he said that the complainant became aggressive and lunged at him. He parried the complainant, who fell, dragging the appellant on top of him. The complainant's head hit the fence post. The appellant landed full on him and then got up and walked away. He denied punching the complainant. He made no reference to having moved the complainant onto the grass.
11. At the trial the appellant gave evidence. He said that he had received a call at work that the complainant had knocked his dog over and the dog had had to be put down. He was in his home having a drink with Stretch when he saw the complainant come home at about 11pm. He was waiting for the complainant to come round and apologise. When the complainant did not come round he went to see him to enquire why he had not apologised. His account of the incident was that he (the appellant) broke down in tears when asking the complainant why he had run the dog over. There was an exchange of words and the complainant then came at him with one arm raised. He could not see because his eyes were full of tears. He grabbed the complainant by the back of the head and threw him out of the door. As he threw him he lost his balance and fell on top of him. He was in the fence panel and he saw blood. He heard a crunching noise when the complainant fell on the panel and saw the complainant crunched up. So he picked the complainant up and put him on the grass. He denied having threatened Lisa Bailey or having told Stretch to "leave it".
12. The first ground on which leave to appeal was granted concerns the witness statement of Miss Durao. We have described the cross-examination of her by reference to that statement after she was declared to be a hostile witness. At the trial the appellant's counsel conceded that the jury should be allowed to read the witness statement in the jury box before they retired. Prosecuting counsel went one further and applied for the jury to be allowed to take the witness statement with them when they retired. The judge acceded to that application. It is submitted on the appellant's behalf that she was wrong to do so. Counsel submits that, contrary to the concession he made at trial, the jury ought not to have been allowed to read it even in the jury box before they retired.
13. It is common ground that, by virtue of section 119 of the Criminal Justice Act 2003, once Miss Durao had admitted making previous inconsistent statements in her written witness statement, the relevant parts of that witness statement were properly admitted in evidence. The question is whether the document itself should have been given to the jury.
14. Section 122 of the 2003 Act reads:

"(1) This section applies if on a trial before a judge and jury for an offence --

(a)a statement made in a document is admitted in evidence under section 119 or 120, and

(b)the document or a copy of it is produced as an exhibit.

(2) The exhibit must not accompany the jury when they retire to consider their verdict unless --

(a)the court considers it appropriate, or

(b)all the parties to the proceedings agree that it should accompany the jury."

15. The argument before the judge extends to several pages of the transcript. At the end of it the judge ruled in these terms:
16. "I have to say that exercising my discretion, there being no specific guidance, as you concede, but it is purely a matter for my discretion, but in order to make sense of this case and to make sense of an evaluation of Miss Durao's evidence, I consider it to be appropriate because I propose to ensure that very robust directions are given with regard to the nature of that evidence when I sum up to the jury and in my judgment that should sufficiently balance and address those matters which you have raised."
17. That was the reasoned basis upon which the document was allowed to accompany the jury when they retired.
18. Mr Lawrence, who appears for the appellant in this court as he did at trial, advances five reasons why, in his submission, the judge was wrong so to rule. First, he points out that the statute is worded that the statement "must not" accompany the jury unless the specified conditions are met, and he submits that this suggests the need for a strong positive reason to override the basic position that the jury must not be given the document. Secondly, in his written submissions he has taken the court through various observations made by the judge in the course of the argument before her, though we regard that part of the exercise as unhelpful. He also refers to the reasons that she gave in her ruling, which is the more helpful part of the exercise. He submits that, contrary to what the judge said, the jury were perfectly capable of making sense of the case and of evaluating Miss Durao's evidence without having the document itself. Thirdly, Mr Lawrence submits that there was a grave risk that the jury would place too much emphasis on the witness statement when they had had it before them to read. The jury would have to decide whether they preferred the written or oral evidence of the witness, and the exercise became unbalanced when they could see and read the witness statement but had to rely on recollection for the oral evidence. Fourthly, it is submitted that analogies can be drawn with other documents, such as transcripts of video interviews which would not ordinarily accompany a jury when they retire. Fifthly, the judge said that she proposed to ensure that very robust directions were given with regard to the nature of Miss Durao's evidence, but it is submitted that what she actually said in her summing-up did not meet that requirement. When directing the jury about Miss Durao's status as a hostile witness, having explained the reason for allowing the written statement to be read and having said that it was for the jury to judge the extent and importance of inconsistencies and the explanation given for them when considering Miss Durao's reliability as a witness, the judge said:
19. "If you conclude that there is a serious conflict between the account she gave in court and her previous account you may think that you should reject her evidence altogether and not rely on anything said by her either on the previous occasion or when giving evidence. However, if after careful consideration you are sure that you can rely on all or part of what she said on the previous occasion or when giving evidence in the witness box here, you may take it into consideration in reaching your verdicts. So as I said at the time, it is really up to you what you make of that evidence but it is not evidence given in the usual way."
20. At the end of her factual summary of Miss Durao's evidence, the judge said:

".... I did warn you about and I have already warned you today about looking at that evidence with some care."

21. Mr Lawrence submits that the directions given by the judge were not sufficiently robust or adequate.
22. The adequacy of the judge's directions links with a separate ground of appeal, which can conveniently be dealt with at the same time. It is submitted that the judge ought to have given the jury a summary and a comparison of both the oral and the written evidence of Miss Durao, drawing their attention specifically to inconsistencies between them and reminding them of the reasons given for any such differences. An analogy is drawn with the guidance in R v S [2004] 3 All ER 689 about the handling of inconsistencies in the context of recent complaint in a case of alleged sexual abuse. As it was, the oral evidence was summarised in detail and there was a reminder of some of the circumstances concerning the taking of the witness statement, but there was no comparison between the oral evidence and the witness statement and no explanation of the extent and significance of inconsistencies. Mr Lawrence submits that these various matters taken together affect the safety of the conviction, given the prime importance of Miss Durao's evidence. He says that the evidence in her witness statement provided the only reasonable alternative to the explanation given by the appellant as to the cause of the complainant's injuries. If there is a risk that the jury may have placed undue reliance on it, or if the jury were not correctly directed in relation to it, the conviction must be unsafe.
23. For the Crown Mr Mills (who also appeared at the trial) has conceded that it was wrong for him to apply to the judge to have the document placed before the jury. He says on mature reflection that that is not a course that he would have wished to adopt. He also fairly concedes that he might have asked the judge to say more in the summing-up than she did about the witness statement and the reasons why the jury had that document before them. The primary thrust of Mr Mills's submissions is not to defend the way in which matters were dealt with at the trial in relation to Miss Durao's witness statement, but that, despite such errors as may have occurred, the conviction was safe.
24. In our judgment the judge was wrong to allow the witness statement to accompany the jury when they retired to consider their verdict. The reason given by the judge that the document was needed in order to make sense of the case and for the evaluation of Miss Durao's evidence was in our view an insufficient reason to justify the course adopted. The jury would have been in a position to make sense of the case and to evaluate the evidence if the matter had been dealt with in the normal way by a reminder in the summing-up of the contents of the witness statement and of what Miss Durao had said about that document and the circumstances in which it was made. There was no special feature of the document that made it necessary for the jury to have the document itself before them. The jury could have been reminded orally of the one manuscript correction admittedly made before Miss Durao signed the document -- a matter relied on by the Crown as showing that she had exercised some care before signing the document. The jury did not need the document itself for that purpose.
25. The reason why we think that the matter should have been dealt with in that way rather than by giving them a copy of the document itself is the undoubted risk that the jury would place disproportionate weight on the contents of the document, as compared with the oral evidence, for the reason that they had the document there in front of them. That is why it is generally inappropriate for the jury to take with them written material of an analogous nature such as a transcript of evidence given by way of a video recording of an interview with a witness. The judge does not appear to have taken that factor into account in her balancing exercise. Once it is taken into account and due weight is given to it, then in the circumstances of this case we do not think that the situation was one where the judge could properly conclude that it was appropriate to make an exception to the general rule set out in the opening words of section 122(2) that such documents must not accompany the jury when they retire.
26. It is fair to say that the judge considered the matter on the basis of a concession by defence counsel that the jury were entitled to read the witness statement in the jury box before retiring to consider their verdict. The course adopted by the judge in allowing the jury to take the document with them went only one step further than that. In our view, however, Mr Lawrence was right to submit before us that his concession at trial was wrongly made. To have allowed the jury to have a copy of the witness statement to read in the jury box would also have carried with it the risk (albeit to a lesser degree) of disproportionate weight being placed on the document. It seems to us that that course was not necessary for a proper understanding of the case or of Miss Durao's evidence.
27. Even if it had been appropriate for the jury to take the document with them, the situation was one that plainly called for robust directions by the judge, as she envisaged. The judge gave an appropriate general direction concerning Miss Durao's status as a hostile witness and the need carefully to consider whether reliance could be placed on her oral evidence or on what she said in her witness statement, or whether the conflict was so great that they should not rely on her evidence at all. But if the document was there before the jury, more was needed than those general directions. It was necessary for the judge to impress on the jury the reason why they were being given the document and the importance of not attaching disproportionate weight to it simply because they had it before them, whereas they had to rely on their recollection of the oral evidence and of the judge's summing up of that evidence. No directions along those lines were given. It may be that the judge also ought to have done more to draw the jury's attention to differences between the oral evidence and the witness statement, although those differences were more ones of degree (as to the number of punches, the complainant being knocked unconscious and punched further while unconscious on the ground) rather than conveying a fundamentally different story from that which emerged from her oral evidence.
28. The impact of the erroneous course adopted in this case should not be overstated. Had the matter been dealt with as it should have been, and the judge had reminded the jury in her summing-up of the contents of the witness statement and drawn attention to the relevant differences between that and the oral evidence, the jury would have had very clearly in their minds, as they will have done from reading the written witness statement itself, the fact that Miss Durao had told the police about witnessing two punches while the two men were standing, with the larger man punching the smaller man, and about witnessing a further punch when the victim was lying on the grass. Indeed, even without those matters being covered in the summing-up, in a relatively short trial the jury cannot have forgotten such matters. They were important parts of the evidence before them and had no doubt been addressed at length in the submissions of counsel.
29. Nonetheless, for the reasons we have given we conclude that the judge fell into error in relation to the handling of Miss Durao's witness statement. Whether in the circumstances those errors were such as to affect the safety of the conviction is an issue to which we will come after considering the one other ground of appeal in respect of which leave was granted.
30. The issue raised by that further ground is whether the judge gave an adequate direction in relation to inconsistency between the account given by the witness Mr Chapman and the other evidence, in particular the account of Miss Durao. It is said that Mr Chapman provided the only direct evidence of the assault, apart from that of Miss Durao, and that his account does not match hers in its description of how the blows were delivered. In summarising his evidence in the course of her summing-up the judge said:
31. "He was asked without making any bones about it, 'Well, have you discussed it at all with other people in the cul-de-sac?' and he said, 'Yes'. He said 'People have told me what happened at the doorway'. Could not be sure who had but he then was asked about how the man was bent over, how was the defendant bent over, was he bent over slightly so he could reach down towards the ground but he described him as being bent to some 30 degree and then went on to say he could have reached if a person was lying down on the floor. It was put to him that most of his story was based on what he had been told and he said well that was true 'Except for what I saw'. He said, 'I've heard different versions and it's right I couldn't see what the defendant punched but I could see him punch down but I couldn't see what he hit. What I saw when I saw him punch forwards was something that I saw, it's not just what people have told me'."
32. Mr Lawrence has taken us to the corresponding passage in the cross-examination of Mr Chapman and has identified one point on which it can properly be said that the judge's summing-up was erroneous. At one point in cross-examination Mr Chapman conceded that if the punch were delivered as he had described, then it could not have reached someone lying on the floor. The judge referred to him as saying that the punch could have reached a person lying on the floor.
33. Subject to that one factual error, it seems to us that the judge's summary of the relevant part of the cross-examination was fair, and the factual error was not one of such significance as seriously to mislead the jury. It is a striking feature that counsel did not notice any such error at the time and therefore did not seek to correct the judge in relation to it. He seems only to have picked up the point on subsequent minute analysis of the transcript. We see no reason to believe that the overall way in which the matter was dealt with by the judge in the summing-up amounted to a material misrepresentation of the evidence.
34. As to the contention that the judge was in error in failing to draw attention to the differences between the account given by Mr Chapman and that given by Miss Durao, it seems to us that Mr Mills is correct in his skeleton argument when he submits that it was sufficient for the judge to remind the jury of the salient features of each witness's evidence. It is inherent in situations of this kind that there will be differing recollections as to detail and that witnesses will sometimes describe different parts of the same overall incident. These were matters for the jury to evaluate. It was not necessary in the circumstances for the judge to say more than she did. We do not consider there to be any substance to the ground of appeal complaining of a misdirection in relation to the evidence of Mr Chapman.
35. We therefore return to the issues relating to Miss Durao's witness statement and whether the errors to which we have already referred affected the safety of the conviction. Mr Mills has pressed upon us the strength of the case against the appellant, independently of Miss Durao's witness statement. He has pointed both to the circumstantial evidence and to the direct evidence. As he said, on the evening in question the appellant chose to go to the home of a man against whom he had a serious emotional grievance, a man very much smaller than the appellant, and within minutes of the complainant going to the door he was found lying on the grass outside his house very seriously injured. The appellant's first reaction was to threaten the complainant's partner Miss Bailey and to tell the appellant's friend Stretch to "leave it". He then left the scene for some hours. In due course, following his arrest, he read out a prepared statement in interview -- a statement in respect of which two further points are made by the prosecution. First, there was a change in the description given by the appellant of the mechanism by which he claimed to have defended himself against an attack by the complainant. In his prepared statement to the police he said that he "parried" the complainant. In his oral evidence at trial he said that he threw the complainant to the ground. Secondly, in the prepared statement the appellant had said nothing about moving the complainant onto the grass. It was part of the prosecution's case at trial that he had developed his story about what had happened at the critical moment in order to add in an explanation for why the complainant was found on the grass in the light of the evidence given by other witnesses, and especially by Mr Chapman.
36. Direct evidence came from two sources of an assault by the appellant. Miss Durao's oral evidence (before she was treated as a hostile witness and her witness statement was introduced) was that she saw a big man beating another by punching him, although Mr Mills accepted that in cross-examination she conceded that it was possible that it was no more than a hand in the face. Mr Chapman, however, gave consistent evidence that he saw the appellant "drive down" with a punch towards the ground at a point where the appellant was standing on the grass. That plainly referred to a later stage of the incident than that described by Miss Durao.
37. We have given careful consideration to all those points and to the case as a whole. The conclusion to which we have come is that the case against the appellant was so strong that the judge's errors did not affect the safety of his conviction. Even if the jury put more weight on Miss Durao's witness statement because they were given the document rather than of being reminded about it through the judge's summing-up, and even though they were not given adequate directions about her evidence, it seems to us that for the reasons put forward by Mr Mills, which we have summarised, there was amply sufficient evidence to sustain the appellant's conviction. We see no realistic possibility that the verdict of the jury might have been different if Miss Durao's witness statement had been handled as it should have been. In the circumstances of this case any prejudice caused by allowing the document to go before the jury rather than dealing with it in the usual way(and what we have held to be the correct way) can have been very slight indeed.
38. Once the jury disbelieved the appellant's account of self-defence and concluded that there was an assault by him, the evidence pointed inevitably, in our judgment, towards a conviction under section 18. There was no realistic possibility of an alternative conviction under section 20, as Mr Lawrence sought to contend at one point in his submissions.
39. For all those reasons we have come to the clear conclusion that, notwithstanding certain procedural defects in the handling of the appellant's trial, the conviction is safe and the appeal must be dismissed.