England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		14th May 2008

1. LORD JUSTICE DYSON: On 8th June 2007 at Bradford Crown Court the appellant was convicted of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to 4 years' detention in a young offender institution. He appeals against conviction with the leave of the single judge who referred the application for leave to appeal against sentence to the full court.
2. On 29th October 2006 outside Moorfield public house in Bradford, the complainant, Debra Lee, was struck in the forehead and suffered a laceration which required stitches. She and the appellant knew each other, as did their families. On 10th November 2006 her father, Wayne Lee Senior, and her brother, Wayne Lee Junior, made statements in which they named the appellant as the person responsible for the assault. The appellant was arrested and interviewed. He made no comment but gave a prepared statement denying the offence.
3. The prosecution case was that on 29th October the appellant came out of the public house, emptied his glass and forced it into the complainant's forehead. The defence case was that the appellant was in the public house, but it was not he who had assaulted the complainant. The allegations against him were motived by malice. There was a history of animosity between the two families. Wayne Lee Junior had introduced the appellant to cocaine and sold it to him until the appellant's family had found out and put a stop to it. They blamed Wayne Lee Junior for his drug addiction.
4. The two principal grounds of appeal against conviction centre on the treatment of Wayne Lee Senior at the trial. In order to explain the relevance of the complaints made on behalf of the appellant, it is necessary to provide a little background. On 1st January 2007 an attempt was made to shoot Liam Carr, the appellant's brother. Liam was living with his girlfriend and her father, a Mr Jackson, at Mr Jackson's home. Earlier in the evening the Jacksons had been socialising in a public house where they saw a man called Robert Whelan, who was the father of the complainant's sister. Shortly after they returned home, Gemma Jackson became aware of Robert Whelan standing outside the house. He knocked on the door. Mr Jackson opened the door. Gemma and Liam were standing immediately behind him. Mr Whelan produced a shotgun which he discharged at the occupants of the house, shooting Mr Jackson in the leg. Mr Whelan then ran off. The matter was reported to the police. Mr Whelan was arrested in interview. He denied anything to do with the shooting. He was charged and bailed and later absconded.
5. A witness at the scene observed the gunman to be in the company of another person shortly before the shooting. The description of that person fitted Wayne Lee Senior who was arrested and interviewed. He exercised his right of silence and the decision was subsequently made not to charge him.
6. Among the witness statements served by the Crown on the defence in the present case was a statement dated 10th November 2006 by Wayne Lee Senior. It gave a clear account of the incident of 29th October at which he was present. It directly implicated the appellant. Mr Wayne Lee Senior said in his statement:

"Suddenly Tony Carr appeared behind these people stood with my daughter. Tony Carr then lunged forward holding a pint glass in his right hand and forced the glass forward straight into her forehead. The glass smashed into pieces all over. I was totally shocked by this and couldn't believe he'd done it. Tony then went out of sight and I saw him next to the pub."

7. Prior to the plea and case management hearing in the present case, the Crown informed the defence that they now considered Wayne Lee Senior to be an unreliable witness because they believed that he had been involved in the shooting incident to which we have referred and they had intelligence that he was involved in the drugs trade. The Crown therefore tendered the witness to the defence. The CPS letter dated 20th March 2007 to the appellant's solicitors was in these terms:

"Please note that the Crown does not intend to rely upon the evidence of the witness Wayne Lee Senior. The police have advised the CPS that --

'It is believed that Wayne Lee Senior does have a connection to a firearms incident that occurred as a result of the assault at the public house. He has not been charged with the offence, but it is believed that he paid for and directed the carrying out of the shooting. Information received, from officers, would indicate that both Wayne Lee Senior and Wayne Lee Junior are involved in the drugs trade.'

The police have been asked to provide further information regarding these matters.

Wayne Lee Senior will remain warned for court and is tendered to you."

8. The matter was listed for plea on 29th March and the appellant pleaded not guilty. The Crown confirmed their decision not to call Wayne Lee Senior as a prosecution witness. At this hearing the prosecution were given 28 days to make disclosure of relevant material, including in particular disclosure of the file relating to the shooting incident in the light of the reviewing lawyer's concession that there was a link between Wayne Lee Senior and the shooting. The defence were also interested in knowing what material the Crown had to support their belief that the two witnesses were involved in the drugs trade. This was considered important to the defence that the animosity between the families was the result of Wayne Lee Junior's drug dealing and the appellant's drug addiction.
9. The Crown failed to make any disclosure in advance of the trial which was listed for hearing on 4th June. On that day the case was adjourned overnight for the Crown to review the material they had and make appropriate disclosure. In the event, the Crown indicated that they considered that they were not required to make any further disclosure of unused material, but they were prepared to allow Mr Khan, counsel appearing then for the appellant as today, to read the papers in the shooting file (the file involving the prosecution of Mr Whelan).
10. The Crown also informed Mr Khan that they intended to call Wayne Lee Senior as a witness after all. They said that the information contained in the CPS letter of 20th March that Wayne Lee Senior had been involved in the shooting incident and the drugs trade was wrong and the Crown had been misinformed. The assertions made in the letter had come from a police minute sheet but the Crown refused to disclose the sheet despite a request that they should do so.
11. In open court Mr Khan told the judge that he objected to the course being proposed by the Crown to call Wayne Lee Senior and that he did not accept the Crown's explanation that there were mistakes in the letter. On behalf of the Crown it was submitted to the judge that a review of the file had led the case lawyer to the conclusion that there was no hard evidence to prove that Wayne Lee Senior was involved in the shooting. Mr Khan submitted that this was not the point. What mattered was that the Crown had made an informed decision on the material they then had in their possession. It was wrong for them to change their mind simply because the in-house advocate disagreed with the reviewing lawyer's assessment of the credibility of the witness.
12. The judge did not accept Mr Khan's submissions. He said this:

"I do not see that it is unfair. I do not see any disadvantage to the defendant that cannot be dealt with by way of cross-examination. The statements that were made on 10th November were well before the shooting matter in January 2007. They are entirely different matters. If there is a connection between the matters it is a very tenuous connection and in my view does not detract in from the validity of the prosecution being able to call Wayne Lee Senior.

Of course, his evidence will be tested in the usual way and then it will be for the jury to decide whether they accept his evidence or not, but I see no reason for that not -- to be prevented from happening [sic]. I do not see any unfairness and I see no disadvantage to the defendant.

And so, in those circumstances, I am prepared to allow the prosecution to call him to give evidence".

In the light of that ruling, Mr Khan made an application under section 100(1) of the Criminal Justice Act 2003 to admit the evidence that Wayne Lee Senior was connected to the shooting on the basis that his credibility was in issue and the evidence seriously undermined his credibility as a witness of truth. Section 100 provides, so far as material:

"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if --

(a) it is important explanatory evidence

(b) it has substantial probative value in relation to a matter which --

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole . . . "

In refusing the application the judge said that he was not persuaded that the criteria of section 100 were met. Unfortunately, he gave no reasons for his conclusion.

13. The first two grounds of appeal are: (1) that the judge erred in allowing the Crown to rely on the evidence of Wayne Lee Senior and, in any event, (2) that the judge erred in refusing the defence application to admit the evidence that Wayne Lee Senior was connected with the shooting.
14. Before we come to the arguments we need to set out the relevant facts in a little more detail. As we have said, on the evening of 29th October 2006 the complainant and others were at the Moorfield public house when she was struck on the forehead in the way that we have described. The appellant, together with his brother and friends were present. The complainant alleged that the appellant was making trouble and his brother was trying to pick a fight. After the incident, police officers attended the scene and spoke to the complainant and her father. Neither of them indicated that the appellant was the culprit. Both said that they were not prepared to make a formal complaint at that time. Later at the hospital while the complainant was being treated for her injury, police officers attended again. Once again the claimant did not indicate that the appellant was responsible for the assault. On 10th November, 12 days after the assault, the complainant, her father and brother all made statements to the police in which for the first time they named the appellant as the person responsible.
15. The appellant's case at trial was that although he was present at the scene of the incident he was not the person who had assaulted the complainant. It was his case that the identification of him by the lead witnesses was the result of a deliberate and dishonest decision to blame him. There had been a history of animosity between the two families.
16. On behalf of the appellant, Mr Khan submits as follows. The Crown sought to renege on an undertaking that they had given that they would tender a witness to the defence and not rely on him in support of the Crown case. They refused to explain how the misinformation on which their understanding as to the reliability of the witness was based had come about. Mr Khan submits that in the absence of any explanation as to how the misinformation had come about, the judge was wrong to rule as he did. He submits that there was unfairness to the appellant in that he had been led to believe that a witness would not be relied upon and that he had conducted his preparation for trial accordingly. The unfairness was increased because the Crown were permitted to change their position without being required to show that there were good grounds for doing so.
17. In the course of his oral submissions, Mr Khan, when pressed by the court, said that if necessary he would go so far as to submit that the change of tack by the Crown amounted to an abuse of process.
18. In our judgment, that high threshold has not been crossed in this case. Unquestionably, the conduct of the Crown was seriously open to criticism. The way in which they behaved was reprehensible. They did not comply with the order for disclosure that had been made on 29th March. It was unacceptable to provide the documents as they did at the start of the trial and not before. It was also highly regrettable that the change of attitude in relation to an important Crown witness occurred in the way that it did. Matters are made worse by the fact that there has been no satisfactory explanation for the change of position. The statements that have been adduced by the Crown, purportedly explaining why the change occurred, do not satisfactorily do so. Mr Gordon accepts that.
19. It seems clear, however, that what happened was that in the first instance a view was taken on the case that the evidence of Wayne Lee Senior was unreliable. That seems to have been prompted in large measure by the shooting incident and the suspicion, at least, that Wayne Lee Senior was involved in that incident. Subsequently, the decision was taken that there was no sufficient evidence implicating Wayne Lee Senior in the shooting incident. It seems to us that it was principally for that reason that the reliability of Wayne Lee Senior as a witness to give evidence in the instant case was reviewed. Once the cloud of the shooting was lifted, it appears that the Crown took the view that there was no good reason not to call Wayne Lee Senior as a witness. We do not regard that as an abuse of process. It was not playing fast and loose with the system in order to achieve a benefit at the expense of the defendant.
20. In our judgment, the judge was entitled to rule as he did. The essential question is whether it was unfair to the appellant to permit the Crown to call Wayne Lee Senior. Mr Khan, who has conducted this appeal with conspicuous skill, has not been able to point to any prejudice that was caused to the appellant's case by the judge's ruling. It is not said that the letter of 20th March caused the defence not to follow an avenue of enquiry which they would otherwise have pursued or not to call witnesses whom they would otherwise have called. The defence had the statement of Wayne Lee Senior at an early stage. Moreover, the cross-examination of this witness was very similar to that of the other eyewitness, Wayne Lee Junior, as inevitably it was going to be. It is not said that the defence did not have sufficient time to prepare for the cross-examination of Wayne Lee Senior. The appellant was, of course, able to give evidence to contradict what the witness was saying and to explain why he believed that Wayne Lee Senior fabricated his account.
21. The unfairness, if any, results no more and no less from the fact that the prosecution said they would not rely on the witness and then changed their mind. Unquestionably that would have caused disappointment, and in one sense it might be said that that is unfair; but it is not unfairness which comes anywhere near amounting to an abuse of process. In the exercise of his discretion the judge was entitled to hold that it was not unfairness of the kind that should preclude the Crown from relying upon an important witness whose evidence could be assessed by the jury together with all the other evidence in the case. It is generally in the interests of justice that all relevant witnesses to an incident, particularly eyewitnesses, should give their evidence before the jury. Wayne Lee Senior was one of the two Crown eyewitnesses who had said they had seen the appellant strike the complainant. For these reasons we reject the first ground of appeal.
22. We turn to the defence application to cross-examine Wayne Lee Senior on the shooting incident. Mr Khan submits to us, as he did to the judge, that as the defence case was that Wayne Lee Senior's evidence was motived by malice, his credibility as a witness of truth lay at the heart of the case. If the jury were satisfied that he was behind the shooting incident, that would have affected the jury's assessment of his evidence. Mr Khan submits that there was a strong inference that the attempt to shoot Liam Carr was connected to the assault on the complainant, as indeed the reviewing lawyer had concluded in the first instance. He submits that the evidence that he was connected to the shooting severely undermined his credibility as a witness of truth and that the judge was in error in refusing to allow the witness to be cross-examined about the shooting incident.
23. Mr Khan submits that the shooting incident was one of a number of incidents evidencing revenge on the part of the Wayne Lee family and animosity towards the complainant and her family. He submits that the case was finely balanced because the only evidence against the appellant was that of the complainant's father and brother. They both had an axe to grind. It was important, contends Mr Khan, that the jury should have been told about the shooting incident to add to the picture that they would have of the degree of animosity between the families and the lengths to which the Wayne Lee family would go to give vent to their feelings towards the claimant and his family.
24. On behalf of the Crown, Mr Gordon submits that to allow cross-examination about the shooting incident would have been, as he put it, to go a bridge too far. The facts of that incident were too remote from the instant case. There was already evidence of other incidents of retribution by the Wayne Lee family although most of that (and maybe all of it), it seems, had come from the mouth of the appellant himself. There was an incident involving the wielding of a baseball bat. There was another incident involving the smashing of windows, and yet another incident where Wayne Lee Junior was in possession of a handgun. Mr Gordon submits that the jury could not have been under any illusion that there was indeed a considerable animosity between the two families.
25. It is, as we have said, unfortunate that the judge did not give any reasons for his ruling. We are therefore left speculating why he ruled as he did. He did, however, have a discretion to exercise and the question that we have to consider is whether the decision he made fell within the relatively generous band given to a judge exercising a discretion whether or not to allow cross-examination in relation to bad character.
26. We have come to the conclusion that the judge was entitled to rule as he did. It seems to us that even if Mr Khan had been permitted to cross-examine about the shooting incident, it would not have advanced matters materially from the appellant's point of view. It is, as Mr Khan concedes, inevitable that Wayne Lee Senior would have denied responsibility for the shooting incident. He would have pointed out that he had not been charged. There was no identification evidence or forensic evidence to link him with the shooting. In other words, beyond eliciting the fact that a shooting had taken place within two months of the incident with which this appeal is concerned, and that Mr Whelan, who was linked with the complainant's family, was involved, cross-examination of Wayne Lee Senior would have told the jury nothing. It seems to us that the judge would have been entitled to take that into account in deciding that it was not appropriate to permit the defence to embark upon an investigation of an unrelated matter. We are satisfied that the jury must have been well aware that there was considerable animosity between these two families and that that was something which they should take into account in deciding whether or not the accounts given by Wayne Lee Senior and Wayne Lee Junior were dishonest and maliciously fabricated in order to implicate the appellant. We therefore dismiss the second ground of appeal.
27. The third ground of appeal concerns the credibility of Wayne Lee Junior. Wayne Lee Junior was presented to the jury as a man of bad character. They were told that he had one previous conviction for possession of cocaine. He was cross-examined as to whether he had supplied cocaine to undercover police officers and denied that he had. It transpires that after the trial in January 2007, Wayne Lee Junior had pleaded guilty to supplying cocaine to police officers. Mr Khan submits that this fresh evidence, which was not available at the trial because it post-dates the trial, was material evidence which might have influenced the jury in their assessment of the credibility of Wayne Lee Junior and therefore casts doubt on the safety of the conviction.
28. The judge at page 5 of the summing up gave the standard bad character direction to the jury. In it he included the statement that Wayne Lee Junior had denied supplying drugs and went on to say:

" . . . and in deciding if he has told the truth you should be aware that a person of bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so."

29. Mr Khan submits that we now know without any doubt that Wayne Lee Junior did not tell the truth. Moreover, he did not tell the truth in relation to a topic which was of some importance, namly the supply of drugs. This was important because it was being suggested that the complainant's family had an axe to grind because they considered Wayne Lee Junior as having been responsible for supplying drugs to the complainant's brother and being responsible for his drug addiction.
30. We have given careful consideration to these submissions. It is clear that the evidence of the plea of guilty in relation to the supply of cocaine is additional material evidence. The question we have to ask is whether it might have influenced the jury and thereby renders the conviction unsafe. We are in no doubt that the jury will have had the full flavour of this case. Wayne Lee Junior was not put forward as a man of good character. The jury knew that he had an offence for possession of cocaine. They knew, in other words, that he was involved in a general sense in the drugs world. They knew that they had to regard his credibility with considerable caution in the light of the direction given by the judge. They were certainly aware of the fact that there was animosity between the two families.
31. Looking at the matter in the round, we take account of the fact that the jury had the benefit of seeing and hearing evidence from the appellant as well as the two principal Crown witnesses. They were clearly sure that the two Crown witnesses were telling the truth and that the appellant was not. In these circumstances, we are satisfied that the third ground of appeal does not cast any doubt on the safety of the conviction. In the result this appeal against conviction is dismissed.
--------- (After further submissions)
32. LORD JUSTICE DYSON: We now turn to the application for leave to appeal against sentence. We do not need to refer to the facts again. The applicant is now 18 years of age. He was 17 at the time of the offence. He has no previous convictions, although in 2005 he was reprimanded for robbery and in 2006 was warned for criminal damage.
33. There was a Pre-Sentence Report before the judge. The writer said that the instant offence was a "major escalation" in his offending behaviour. He was a young father with a six month old baby. His partner's pregnancy caused him to stop using drugs. He was impressionable and impulsive. He was in employment and posed a medium risk of re-offending. A high seriousness community order with a 12-month supervision and 100 hours unpaid work was recommended.
34. The judge said that the complainant had suffered a three inch wound and he believed that she had been scarred for life. She had suffered an emotional and psychological impact. The offence was serious. The judge did not consider that the appellant posed a significant risk to the public so as to engage the IPP provisions of the Criminal Justice Act 2003. The court took into account the appellant's age, his lack of previous convictions, the submissions in mitigation and the contents of the Pre-Sentence Report. He could not accept the recommendation of the Pre-Sentence Report and passed the sentence to which we have referred.
35. In support of the application for leave to appeal against sentence, Mr Khan emphasises in particular the appellant's youth and the fact that he was only 17 at the time of the offence. He submits that the sentence that was passed in this case was would have been more appropriate for somebody who was significantly older than the applicant. He also relies upon the various other matters to which the judge referred in his sentencing remarks.
36. We have been shown the photograph of the injury. It is true that this was taken shortly after the incident. It is, however, a very serious wound in a very prominent place. It is true we do not have medical evidence about this, but it seems to us unlikely that the disfigurement will disappear completely, although that is a possibility.
37. This was a very serious offence, glassing the forehead not far from the eye. The sentence of 4 years was a heavy sentence to pass on a young man who was only 17 at the time of the offence, but we do not regard that sentence as being manifestly excessive. Accordingly, we refuse the application for leave to appeal.