England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 200802561/C1 Royal Courts of Justice Strand London, WC2A 2LL
		21st August 2008

1. LORD JUSTICE GAGE: On 23rd August 2007 at Aylesbury Crown Court this appellant was convicted of two offences. The first was an offence of religiously aggravated inflicting grievous bodily harm (count 1) and the second an offence of intimidation (count 2). On 31st March 2008 he was sentenced to 30 months' imprisonment, less 355 days spent on remand, for the offence of religiously aggravated inflicting grievous bodily harm and nine months' imprisonment consecutive for the offence of intimidation. On the same date he was sentenced to three months' imprisonment consecutive for an offence of racially aggravated common assault, the subject of an earlier indictment and trial. No issue arises in respect of the latter offence in this appeal.
2. The appellant appeals against his convictions in respect of the first two offences by limited leave of the single judge.
3. In respect of these two offences in summary the evidence was as follows. We deal first with count 1, the offence of religiously aggravated inflicting grievous bodily harm. The complainant, Ram Duggall, said that on the morning of 9th June 2006, having just had breakfast at the Green Cafe, Denham, he left the cafe and walked towards Fine Food Store. He saw the appellant, a man whom he knew, standing against a hairdresser's window. The appellant called him a "Hindu bastard". Mr Duggall observed that the appellant's speech was slurred, causing him to believe that the appellant was intoxicated. The appellant acted in a loud and aggressive way, and, as Mr Duggall tried to move past him, the appellant tried to kick him on his left leg. Mr Duggall put his leg up to try and ward off the blow, but he said that the appellant caught him on the shin and stamped on his other leg. In the course of the incident Mr Duggall was pushed over a sandwich board outside the hairdresser's salon immediately adjacent to the incident and was wrestled to the ground. Mr Duggall said that the appellant stamped on his leg and during the course of the attack swore at him, mumbling and saying "Hindu bastard". Eventually staff came out of the hairdresser's shop and rendered assistance to Mr Duggall. In due course he was taken to hospital where his injuries were seen to and an X-ray taken showing he had a broken leg.
4. In the course of cross-examination Mr Duggall agreed that he told the police officers after the event that the appellant had a can of beer in his hands at the time of the attack and that he had been kicked to the head, ribs and legs. He agreed that this was inconsistent with the evidence which he had given in court. He also appeared to agree that the appellant had fallen on top of him during the altercation. He said that he had known the appellant for two to three years and there had been a time when they both had been friends.
5. The prosecution called a number of witnesses who had either seen the incident or became involved in it. One, Seyfi Gookmenn, a waiter in the cafe, said that he had heard two people fighting outside. He said that he saw the two people outside the cafe. He went outside and tried to separate them. He agreed in cross-examination that in some respects his evidence was inconsistent with his witness statement. Before us today Miss Howell for the prosecution very fairly told us that he was in many ways an extremely bad witness.
6. Another, Maria Ann Knight, worked at the hairdressing salon close to where the incident took place. She said that at 10.00 a.m. that morning she heard voices outside the hairdresser's. She heard the sandwich board scraping along the pavement and realised that a fight was going on. She looked out of the window and saw two Indian men fighting. One of the men was being attacked by the other. She saw that that man had his legs swept beneath from him and the other man then punched while he was on the ground. She said that the man on the ground was trying to protect himself, but the man on top continued lashing out with his fist. She later attended an identification procedure but picked out a man who was not the appellant. In cross-examination she said that she had not heard any racist remarks during the altercation and did not think it was possible that the appellant fell accidentally onto Mr Duggall. The prosecution case was that because she was a witness to this incident she was subjected to intimidation which became the basis of the second count in the indictment to which we will turn later in this judgment.
7. Two further eye witnesses were called. They were Maria Knight's husband and her son, both of whom worked in the hairdresser's shop and were involved to some extent in the incident.
8. A police officer, PC Parry, made a statement which was read to the court. He attended the scene of the incident and obtained a description of the attacker which fitted that of the appellant.
9. Finally the evidence of a medical practitioner was read to the jury. His evidence was that Mr Duggall was admitted to hospital complaining of a swollen right leg, bruising and abrasions to his elbow and chest pains. As we have already said, a X-ray was taken which showed a fracture to the part of the tibia which joined the knee. His evidence was that on admission Duggall was shouting and abusive.
10. The appellant gave evidence in respect of this incident. His case was that he had acted at all times in lawful self-defence, alternatively that the injury had been caused by accident. He said he had known Mr Duggall for some years as a neighbour. By June 2006 they were on bad terms. On the morning of 9th June 2006 he said he was standing outside the hairdresser's salon when he saw Mr Duggall walking towards him. He asked Mr Duggall to return a tape which he had previously lent to him. Duggall's response was to tell him that he did not have it and to leave him alone. An argument ensued in which each swore at the other. The appellant admitted calling Duggall a "fat fucking bastard" to which Duggall said "come on then". It was the appellant's case that Duggall was the aggressor in the ensuing altercation. Duggall lent backwards and both fell to the ground. The appellant said that he landed on top of Duggall and held his arms to the ground. At that point Mr Knight, Maria Knight's husband, came out of the hairdresser's shop and pulled him off Duggall. In cross-examination he denied being drunk on the occasion of this incident. He had denied tripping Mr Duggall and denied calling him a "Hindu bastard".
11. So far as the offence of intimidation was concerned, as we have said it concerned Mrs Maria Knight. She said that on 23rd September 2006 she was working at the hairdresser's salon with her daughter, Corinne. During the course of the afternoon as she was attending to a customer she saw the man who had been involved in the previous incident looking through the door into the salon. The man walked away but returned a little later. She thought he was looking for a customer so she went to the door and asked, "Can I help you?" She said as soon as she looked into the man's face she realised that at the identification parade earlier she had picked out the wrong person and it was the man standing before her who had attacked the other Indian man. Her evidence was that the appellant called her a "fucking bitch". He asked if she was Maria and said that she had "stitched him up". By then her daughter had come to her side. The man was angry and shouting. He kept calling Mrs Knight a "fucking bitch". He said that he would bomb the shop and "do her". She told Corrine to telephone the police and pushed the door of the shop shut. The man stood outside before walking away towards the station.
12. Mrs Knight's evidence was supported by evidence given by her daughter Corrine. In addition, a customer, Victoria Pearce, said that as she was having her hair cut on 23rd September she heard a man using the F word at Maria and making threats towards her.
13. The police officer was called. His evidence was that following a telephone call he went to the salon. Mrs Knight gave him a description of the man who had intimidated her. As a result, the police officer was able to identify the appellant and arrest him for a public order offence. At the police station the appellant was abusive and appeared to be under the influence of alcohol. He complained he had been "stitched up". Significantly, in our judgment, this was the same phrase as we have said that Mrs Knight and her daughter Corrine said was used by the man who had confronted them earlier on that day.
14. The appellant's defence given in evidence was the same as that which was in a prepared statement given to the police officers at interview. He accepted that on 23rd September he had passed by the hairdresser's salon. His case was that nothing had happened. He went to the Fine Food Store and purchased two cans of cider before returning past the hairdressers. On his way back a woman (whom he thought was Corinne) was standing in the doorway of the salon and she gave him a dirty look. He said he gave her a dirty look back but nothing else happened.
15. Subsequently he was stopped by police officers and arrested. He told the police that he had guests at home and one of these guests might have been involved. In cross-examination, he agreed that he knew that Maria Knight was a witness in the case (count 1) and that she worked at the hairdresser's salon. He agreed that he had walked past the salon four times on 23rd September. He said that he had told his guests that he had had an altercation (the incident in respect of the first incident) and that one of his guests, Ajad Khan, had, hearing on this information, walked out. He said that Khan was of similar appearance and build as him and that the two of them had drunk cider together. He agreed that his defence case statement made no mention of Mr Khan but he said that he expected the CCTV footage of the street would exonerate him.
16. On this evidence the appellant was convicted of both counts.
17. There are a number of grounds of appeal. The appellant has leave to appeal in respect of four grounds. They are as follows. First, it is submitted that the judge erred in giving the jury a Lucas direction in relation to lies alleged to have been told by the appellant without hearing argument from the appellant or adjourning for him to obtain legal advice. Second, complaint is made that in giving a section 34 adverse inference direction the judge failed to tell the jury that the appellant's case was that he had told his solicitors of the existence of Ajad Khan, alternatively it is complained that the judge failed to inform the appellant that he might wish to call evidence and equally that he failed to give reasons to the appellant as to why he was going to give the adverse inference direction. Thirdly, it is submitted that the judge failed to enquire of the appellant whether he was going to call witnesses. Fourthly, complaint is made that prosecuting counsel was wrongly permitted to make a closing speech.
18. There are a number of further grounds of appeal in respect of which leave was refused by the single judge. Mr Harrison, who appears on behalf of the appellant in this appeal, addressed us first in relation to those grounds and we shall deal with them before turning to the grounds upon which the appellant has leave. We shall deal with each of these grounds comparatively shortly.
19. In ground 1 it is complained that the judge failed to allow the appellant to transfer his legal representation order to other solicitors. This is in two parts. The first refusal to transfer the representation order was made by Judge Connor on 6th June 2007. At that stage the appellant faced other charges not on the same indictment. From the transcript of the hearing, which we have read, it seems that the appellant was quite happy for his current solicitors to represent him in relation to the other charges. That appears from page 6 of volume 1 of the transcript. The judge indicated that he was troubled by amending the representation order to solicitors just to act in relation to this matter. When he made this clear to the appellant, the appellant responded that he would represent himself. The judge pointed out the extra work and cost involved in instructing other solicitors. At the end of that hearing, the judge said that he would leave the representation order as it was for the appellant to reflect upon it.
20. The next time that this matter was raised, so far as we can see, was at the hearing before Judge Cripps on 3rd August 2007. The submission is that he ought to have broken the fixture for this trial, which was fixed for 20th August, so that the legal aid representation order could be transferred to fresh solicitors. Both the appellant's current solicitors and the proposed new solicitors were present at that hearing.
21. In the course of his submissions today Mr Harrison concentrates upon the fact that in his submission there were a number of defects in the way in which the current solicitors were preparing the case for trial. Looking at the transcript, as we have, of that hearing, it is quite clear that the judge explained the position to the appellant and went quite carefully through with him complaints which the appellant had made in a letter to the court.
22. Counsel who was then instructed on the appellant's behalf, Mr Orsulik, sought to explain to the judge that everything was in hand. The judge at the end of the discussion between himself and counsel on behalf of the appellant, as well as the appellant himself, came to the conclusion that there was no substantial compelling reason for him to discharge the current representation order and transfer it to the solicitors. He explained this quite clearly as can be seen from volume 2 at page 12 to the appellant, saying:

"Because I am afraid, again, it is the same position. I am not with you. I cannot see that there is a substantial compelling reason, I am afraid. Any reaction to that? Anything I have missed, do you think?

The Defendant: Only the main reason, the trust I have lost in IBB and I trust Mr Dunlop."

The judge said he was not prepared to transfer the representation order and the appellant said that he would elect to represent himself.

23. Earlier in the transcript it is clear that the judge referred to schedule 3 of the Access to Justice Act 1999 Archbold Criminal Pleadings and Practice paragraph 6-169 in which the principles in schedule 3 are set out.
24. In our judgment, it seems perfectly clear from the transcript that the judge applied his mind to the correct principles and made a decision which in our judgment cannot be challenged.
25. Subsequently, on the first day of the trial, Judge Connor asked the appellant if he was going to represent himself. The appellant said that he was. On the second day of the trial the judge again dealt with this matter with the appellant in the absence of the jury. The transcript shows that he said that he had heard a rumour that perhaps the appellant was going to seek representation. The appellant said he was not and that he was going to continue to represent himself.
26. We turn next to ground 2 which is associated with the first ground. During the course of the trial, on the third day after the principal eye witness evidence had been given by the prosecution witnesses, the stage had reached where the evidence from police officers as to what occurred at interview and the remaining evidence of prosecution would be given, followed by which the appellant was due to give his own evidence. During the course of discussion with the judge the appellant made it clear he would be giving evidence. On that day the appellant asked for legal representation to help him when he gave that evidence and with his speech. The judge pointed out to the appellant the difficulties of another freshly instructed representative coming into the trial at that stage. He invited the appellant to fill in a form seeking legal aid and asked the appellant the reason why he had changed his mind. The appellant gave no reason other than that he than he wanted help with his own evidence and with a speech.
27. Later on the same day the form, duly filled in, was presented to the judge. The judge declined to direct a transfer. At page 44B to C of the third day of the trial he said:

"Next, I notice that you are unable to give any explanation at all as to why it is that you have changed your mind as to your wish to be legally represented during this trial and I am sorry to say that I am forced to the conclusion that the application must be a tactical move intended to cause delay and perhaps further confusion in the trial, and in those circumstances the application is refused."

28. On behalf of the appellant Mr Harrison submits that the judge was wrong to make that decision. He submits that the judge ought to have adjourned the case. It would not have taken long either for a representative to be appointed, nor for him to have read through the appellant's notes so that he could properly represent him in the final stages of the trial.
29. The judge had observed the appellant throughout the first two days of the trial. Initially the appellant was, as we have indicated, adamant that he wanted to represent himself. As the judge pointed out, at some stage, not at this particular stage, the appellant was not entirely unversed in criminal proceedings. He has a large number of previous convictions.
30. In our judgment, the judge was quite entitled to find that the application for representation at this stage of the trial was a delaying tactic and in the exercise of his discretion refuse to adjourn. There would have been an inevitable consequent delay.
31. Mr Harrison submits, as we have said, that the judge was wrong to take view, but he is constrained to concede that the inference that the judge drew was one which could be drawn. In our judgment it was undoubtedly one which could be drawn by the judge and it cannot be challenged for that reason. We remind ourselves in relation to both these two grounds that in the recent case of R v Ulcay 1 Cr App R [2008] 360, [2007] EWCA Crim 2379, at 32 the President of the Queen's Bench Division said in relation to matters such as this:

"Our approach is entirely consistent with the judgment of Judge Wakerley QC, then the Recorder of Birmingham, dated 10th July 2001 in R v Ashgar Khan addressing the 2001 Regulations.

We pause there to say these were the regulations which the judges in this case were dealing with.

"Expressing his concern at the increasing number of applications for transfer of representation in the Crown Court, he observed:

'... This court will insist on strict compliance with the provisions of Regulation 16 ... The grounds of the application and full particulars need to be specified by the existing representatives. Next, the substantial compelling reason under subparagraph 2(4), if relied on, needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representative ... only in extremely rare cases, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as a result of proper advice.'"

That observation is, in our judgment, particularly apt for the submissions that have been made to us in respect of ground 1.

32. The third ground again is associated with the first two grounds. Complaint is made that the judge erred in failing to adjourn and order new representatives when it was clear that the appellant was not in a position to call his own witnesses.
33. In our judgment there was no stage when the appellant was not in a position to call witnesses. On the contrary, in respect of Dr Matherson and a Miss Heather Fleming, to whom we will return in a moment, the judge bent over backwards to help the appellant. He arranged for Miss Fleming to attend the court to have a statement taken from her by a police officer. As it turns out now, the ground of appeal, ground 5 in relation to the failure to allow a witness summons in respect of Heather Fleming, is not pursued. In our judgment, there was no reason why the judge should have alerted himself to the fact that the appellant was unable to deal with his own witnesses.
34. So we turn to ground 4, also upon which leave has been refused. It is submitted that the appellant was not able properly to highlight the inconsistencies in the evidence of the prosecution witnesses. Mr Harrison fairly concedes that anyone representing himself may be faced with some difficulties. However, he submits that in this particular case it ought to have been so obvious to the judge that the appellant was unable to cope that he should have taken steps to see that he was represented.
35. It is difficult for us at this stage to judge how it was that the appellant appeared before the judge when he decided that he would represent himself. However, once he had stated, as he did twice, in the course of the trial that he was going to represent himself, the judge was quite entitled to leave him to carry on as he was. When it came to the stage when he sought representation, the judge refused it because he gave no reason as to why he had changed his mind and we have already concluded that the judge was entitled to reach that decision. Accordingly, in our judgment, there is nothing in that ground of appeal.
36. Ground 5, as we have said, is not pursued. It relates to the proposed witness Heather Fleming. We need deal with it no further.
37. Grounds 10 and 11 refer to medical evidence. We have already stated that there was evidence from a Dr Matherson in relation to the injuries sustained by Mr Duggall. Dr Matherson's witness statement was read to the jury. It is clear from that witness statement that all he was able to say was what was recorded in the hospital notes of injuries sustained by Duggall on admission to hospital following the incident in relation to count 1.
38. The applicant's case was that Duggall may have been more susceptible to injury than a normal person. However none of what Dr Matherson could say carried his case in that respect any further.
39. Accordingly, before us today Mr Harrison concentrates on the second part of that ground, which in effect is ground 11, submitting that the appellant ought to have been given the opportunity, or his previous representatives ought to have taken steps, to obtain another opinion from a medical expert to show that it was possible that the fracture of Duggall's leg could have been caused as a result of an accident.
40. It seems to us that this was a matter which was, firstly, complete speculation and, secondly, one which the jury would be quite able to cope with on the basis of their own common knowledge and common sense. The question of how the injury occurred would depend to a very large extent upon the force used of which the appellant and Mr Duggall were the prime witnesses in respect of that issue. There is, in our judgment, nothing in either of these two grounds.
41. We turn to the four grounds upon which leave has been granted. The first ground is a submission that the judge was wrong to give to the jury a Lucas direction in respect of alleged lies told by the appellant. The alleged lie related to a conversation which the appellant admitted having with police officers on the telephone following the first incident. It is alleged that he said he was in Uxbridge and would meet the police officers at Tesco. He accepted in evidence that he was not in Uxbridge at that time. It is accepted that he was in fact, and he accepted in the course of his evidence, on his way to Uxbridge when he made that observation. In fact, he did not go to Uxbridge and as a result he did not meet the police officers. In the course of discussion between the judge and counsel, counsel for the prosecution made what at first sight appears to us a somewhat half-hearted suggestion that a Lucas direction be given in relation to that alleged lie. At first the judge seemed to think it unnecessary but in due course he was persuaded that he should give a direction and gave it in the following terms:

"Then I turn to the question of what the defendant said to the police, two aspects of that. As I have reminded you, in his evidence the defendant conceded that when he told constable Parry on the telephone that he was in Uxbridge and would meet him in Tesco he was not being truthful. The inference is at least as indeed the defendant seemed to accept in his evidence that he was in truth seeking to avoid being arrested. You are entitled to consider whether the evidence about this supports the case against him, and in this regard if you take the view that that was indeed a lie told by the defendant, namely that he was in Uxbridge and would meet the officers in Tesco, why did he tell that lie."

The following paragraph is a conventional Lucas direction given in the usual form.

42. The judge continued:

"If you think that there is or may be an innocent explanation for those lies then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason that they can be regarded as evidence supporting the prosecution case."

43. Mr Harrison submits that such a direction was quite unnecessary and that, in any event, the appellant had not conceded that he had lied. It is further contended as part of a general allegation that the appellant was disadvantaged by not being represented and by being unable to understand the discussion between counsel and the judge and unable to contribute to whether or not a direction should be given.
44. The prosecution in a skeleton argument submit that the appellant did admit telling a lie about where he was and that the Lucas direction was necessary.
45. In our judgment, having read the transcript of what the appellant said (we do not cite it in this judgment, volume 5 page 53 and pages 73 to 75) it seems quite clear to us that the appellant was at some stage conceding that he had not told the police officers the truth. In any event, in the course of his direction the judge made it clear that the jury could only act upon it if they were satisfied that the lie had been told. Whether or not the appellant lied to the police about being at Uxbridge this was clearly a comparatively minor matter in the overall context of the case.
46. Some judges might not have given a Lucas direction; others undoubtedly would. We do not think that the judge can possibly be criticised for doing so. It was done on the instigation of prosecuting counsel and done no doubt with the motive of providing a fair direction to the jury so far as the appellant is concerned. In our judgment, this is not one of those cases in which giving such a direction adversely affects the appellant's case. Accordingly, we think there is nothing in this ground of appeal.
47. We turn to the next ground of appeal, which is ground 7 in the original notice of appeal but the second ground upon which leave has been given. The judge gave the jury a section 34 direction in relation to the appellant's failing to mention before trial his evidence that a guest of his, Mr Ajad Khan, might have been the person who threatened Mrs Knight. It is quite clear from the cross-examination of the appellant in volume 5 pages 83 to 88 (we do not cite the whole passage). The question is put to him at the bottom of page 83:

"So it is another person who you had spoken to on that day that must have committed this offence?

A. Not spoken to on that day. It was like it was one of my mates."

48. The cross-examination continued, in the course of which the appellant stated that it must have been Ajad Khan, a guest of his on that day, namely 23rd September. He went on to accept that he had not mentioned Khan's name in his police interview, nor was it put in his defence statement. When it was suggested to him that it was a recent invention he disagreed. However, he insisted that he always raised the matter with his solicitors.
49. In our judgment, the matter having arisen as it did during the course of the appellant's evidence, it was inevitable that the jury should be given by the judge a section 34 direction. It is not now suggested by Mr Harrison that the judge was wrong to give such a direction. So far as we can understand the submissions that are made to us on this point, Mr Harrison submits that the matter was not properly explained to the appellant in the discussion between himself and counsel. In fact, when one reads the transcript of the discussion that took place, it is quite clear that the judge did ask the appellant for his comments and we see no reason to criticise him in any way for having given that direction.
50. In our judgment, this criticism is unfounded. In giving his direction to the jury on this aspect of the case the judge again gave, again, what is a conventional and entirely fair direction. Furthermore, in our view, he went rather further than he needed have done because he told the jury that if they thought that the appellant had not mentioned this matter, because of advice given to him by his solicitors, they should not hold it against him. That in fact was never quite what the appellant said in evidence.
51. There is an associated ground on which he has leave, namely ground 8 or ground 3 on which he was given leave, in which it is complained that the judge did not inform the appellant that he was entitled to give evidence and to call witnesses in support. It is in that regard correct that the judge did not give the standard practice direction before the appellant himself gave evidence as to the inference that might be drawn if he did not give evidence and did not call witnesses. However, it is quite clear from what we have already said that at all stages the appellant proposed to give evidence and made that clear. Accordingly, in our judgment, there is nothing in the point that the judge failed to give any kind of warning to the appellant before he himself gave evidence.
52. So far as witnesses are concerned, again it is perfectly clear from the transcript that once the appellant's evidence had been completed the judge in terms told him of his right to call witnesses. It may not have been in the precise form that would have appeared had he given the practice direction form at the outset of the appellant's evidence, but it was, in our judgment, nevertheless quite sufficient to alert the appellant to his right to call witnesses to give evidence on his behalf.
53. In his final submission Mr Harrison submits that the judge should specifically have identified the appellant's solicitor as one whom he might wish to give evidence. In our judgment, that would have been going beyond the duty of any judge in the circumstances. We see nothing in that point either.
54. We turn, therefore, to the sole ground of appeal in which, in our judgment, there is some force and which we have considered with some care. At the close of all the evidence prosecution counsel, Miss Howell, made a speech on behalf of the prosecution. Miss Howell does not concede that necessarily in every case where a defendant is unrepresented and gives only evidence on his own behalf that prosecuting counsel cannot make a speech. However, for the purposes of this appeal we take the view that the prosecution had no right through counsel to address the jury at close of the evidence.
55. There is no doubt that the general rule is that prosecuting counsel is not allowed a second speech where a defendant has called no witnesses apart from himself. This derives from section 2 of the Criminal Procedure Act 1885, Lord Dennam's Act, which starts off in the following terms:

"If any prisoner or prisoners, defendant or defendants, shall be defended by counsel but not otherwise, it shall be the duty of the presiding judge at the close of the case for the prosecution to ask counsel for each prisoner or defendant so defended by counsel whether he or they intend to adduce evidence."

We do not need to repeat the rest of that section. It is the words "but not otherwise" which in our judgment provide a prohibition in respect of a speech in such circumstances.

56. This matter was referred to in R v Mondon (1968) Cr App R 695. Giving the judgment of the court, Edmund Davis LJ said (page 2 of 3 in the bundle of authorities put before us by prosecuting counsel):

"The practice is now well established that in circumstances such as these, where an accused person is professionally unrepresented and calls no witnesses, other than giving evidence for herself or himself, the Crown is not entitled to make a second speech. That has long been a rule of practice.

In Harrison [citation given] Salter J said ... 'we desire to point out very clearly that the rule about counsel in such circumstances not addressing the jury a second time is one which ought to be carefully observed, and it might be that in another case this Court would have to hold that a conviction, in a trial where such an irregularity occurred, must be quashed.' In that particular case the Court, applying the proviso to section 4(1) of the Criminal Appeal Act 1907, came to the conclusion that despite the irregularity there had been no miscarriage of justice, and the conviction was accordingly affirmed and the appeal dismissed."

57. More recently in the case of R v Stovell Rose LJ, Vice President as he then was, referred to Mondon. At paragraph 27 of the judgment, having referred to counsel's reference to the case of Mondon, he continued:

"It is to be noted that, in that case, the appellant had been unrepresented throughout her trial. It is also to be noted that the case was decided at a time when the proviso applied under the Criminal Appeal Act 1968, whereas the determinative test which this Court now has to apply is as to the safety of the conviction.

It is also to be noted that, even under the 1968 Act, it was by no means the inevitable consequence of prosecuting counsel having improperly and inappropriately made a final speech in relation to an unrepresented defendant, that the conviction would be quashed. (see R v Pink 55 Cr App R 16)."

We pause there to say that in Pink in the final paragraph the court dealing with the proviso again said this:

"In the view of this court, no reasonable jury, unaided by a second address on behalf of the prosecution but with the benefit of a full and fair summing-up such as they had in this case, could have failed to bring in a verdict of guilty. Accordingly, this appeal is dismissed."

58. In Stovell the court went on to deal with the facts of that case before announcing the conclusion in relation to this matter at paragraph 36:

"So far as the prosecution's second speech is concerned, in the light of the procedural and evidential changes which have taken place since the decision of this Court in Mondon, we are by no means satisfied that in all cases, particularly when a defendant has been represented substantially throughout the trial and there are issues arising during the defence upon which the jury would be assisted by comment from prosecuting counsel, it is necessarily inappropriate for prosecuting counsel to make a second speech. But it is unnecessary in the present case to reach a conclusion with regard to that matter, because, for the reasons we have already given, even the old authorities would not, as it seems to us, lead to the quashing of this conviction."

As is pointed out in the commentary in the Criminal Law issue that observation was _obiter_.

59. It is accepted by Mr Harrison that in certain circumstances it might be that even where a defendant is unrepresented counsel for the prosecution might be entitled to make a closing speech. However, for the purposes of this appeal we shall deal with it on the basis, as we have said, that the prosecution had no right to make a speech. We also see no sensible difference between the test of safety of the conviction in these circumstances and that which is propounded in Pink as we have set out earlier.
60. We have to decide, therefore, whether the verdicts in this case are safe, notwithstanding the fact that prosecuting counsel made a speech which she was not entitled to do.
61. Having considered the whole matter carefully, we have concluded that the convictions are nevertheless safe. We give reasons for this. First, to far as count 2 is concerned the appellant admitted knowing Maria Knight had witnessed the earlier incident. He admitted that he knew that she had provided a witness statement. He accepted that he had walked past the hairdressing salon on 23rd September four times. It was not suggested that Mrs Knight had concocted her evidence of a confrontation between a man who called her a bitch and endeavoured to intimidate her. It would therefore have been a very substantial coincidence if someone other than the appellant had sought to intimidate her in relation to what she had seen of the incident which had occurred in June. In addition, the appellant at a very late stage, namely when he was giving evidence for the first time, said that a guest of his, Ajad Khan, could have been the person who had confronted Mrs Knight on that occasion. As already observed, we regard it as significant that when he was seen by the police he used the same expression, namely that he had been stitched up, as Mrs Knight said had been used by the person who confronted her.
62. In our view, in the case of count 2 the prosecution case was really overwhelming. There can be no question about the safety of that verdict. We are entirely satisfied that is is.
63. We turn next to count 1. In our judgment, the evidence against the appellant on that count was also strong. Although Mr Duggall's evidence contained inconsistencies and the witness from Rooster was conceded to be a very poor witness, the Knights were independent witnesses. Again it is fair to point out that independent they were, but they all came from the same family. All three were quite clear that the appellant was the aggressor in the incident which related to count 1. This in our judgment was in effect the real issue in the case. The appellant conceded that he had called Duggall a "fucking bastard". He did not concede that he had called him a "Hindu bastard". Of course, it was necessary for the prosecution to prove the religious motive for the offence. As we have said, not all witnesses said that they heard the appellant call Duggall a Hindu bastard. However, Steve Knight, Maria Knight's husband, made it plain that he had heard the appellant state this in clear terms. Either he or his son observed that he thought it was odd since both men were of Asian extraction.
64. In our judgment, the jury were quite entitled to disbelieve the appellant's evidence in respect of count 2. Working backwards from that to count 1 and in view of the matters to which we have already referred, in our judgment they were quite entitled to reject the appellant's evidence on that count as they clearly did. They were equally quite entitled to be sure that Mr Knight was correct when he stated that the appellant had called Duggall a "Hindu bastard".
65. Finally, the summing-up of the judge was in our judgment scrupulously fair. Many of the points made by Mr Harrison in his submissions to us about the inconsistencies in some of the prosecution evidence were made by the judge in the course of his summing-up. Towards the end of the summing-up the judge cautioned the jury in respect of Duggall's evidence. He directed the jury to approach his evidence with some care and look for supporting evidence. It is quite clear in the end that the jury must have been satisfied as to the truthfulness and accuracy, at any rate, of the Knights' evidence and in our judgment the verdict in relation to count 1 is also safe.
66. In the circumstances, we are quite satisfied that whether the test of safety is expressed in the terms used in Pink or simply on the basis of the current statutory test of safety, we are left in no doubt that both these verdicts are safe. The appeal against conviction must be dismissed.