England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6th July 2011

Lord Justice Jackson :

1. This judgment is in six parts, namely:

Part 1. Introduction

Part 2. The Facts

Part 3. The Criminal Proceedings

Part 4. The Appeal to the Court of Appeal

Part 5. The Law

Part 6. Decision

Part 1. Introduction

2. In this case the appellant was convicted of unlawful and malicious wounding contrary to section 20 of the Offences Against the Person Act 1861, but acquitted of having the offensive weapon which he was alleged to have used in the incident. The issue in the appeal is whether that conviction should be quashed on the grounds of inconsistent verdicts. In this judgment we shall refer to the Offences Against the Persons Act 1861 as "the 1861 Act".
3. After these introductory remarks we must now turn to the facts.

Part 2. The Facts

4. On the evening of 5th December 2009 the appellant and his girlfriend, Michelle Machin, whilst at their home in Bromsgrove, received an unwelcome visit from a man called James Hanna. Mr Hanna requested repayment of money which he had loaned to Miss Machin. There followed an argument in the street. The appellant then got into his car, with Miss Machin in the passenger seat. The appellant drove his car at Mr Hanna, who was walking away from the scene. The vehicle struck Mr Hanna and caused one bone in his leg to break.
5. The appellant suspected that a mutual acquaintance called Jonathan Crow had furnished to Mr Hanna the address at which the appellant was living. In some anger the appellant drove to Mr Crow's home in Rubery, intending to confront him about this matter. There was an altercation on Mr Crow's doorstep, in which blows were exchanged. In the course of this incident, Mr Crow received an unpleasant cut to his head. According to the agreed medical evidence, this was a 1.5 centimetre by 1 centimetre wound to the rear of the head on the left-hand side. This was consistent with blunt trauma to the scalp.
6. Mr Crow asserted that the appellant had hit him on the head with a hammer. The appellant denied that he had been in possession of a hammer or that he had caused the head wound. When the police subsequently investigated the incident, they did not find a hammer at the scene. Nor did they recover a hammer which might have been used in the incident.
7. The appellant maintained a denial that he was guilty of any unlawful violence against either Mr Hanna or Mr Crow. In those circumstances the Crown Prosecution Service commenced criminal proceedings against the appellant in respect of both incidents on 5th December 2010.

Part 3. The Criminal Proceedings

8. The appellant and Miss Machin were charged on an indictment containing five counts. Count 1 was a charge of assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act. Miss Machin on that count was charged with assaulting Mr Hanna and thereby occasioning him actual bodily harm. Count 2 charged the appellant with causing grievous bodily harm with intent to Mr Hanna, contrary to section 18 of the 1861 Act. Count 3 charged the appellant with wounding Mr Crow with intent to cause grievous bodily harm, contrary to section 18 of the 1861 Act. Count 4 charged the appellant with having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. The allegation was that the appellant had with him an offensive weapon, namely a claw hammer, on the occasion of his encounter with Mr Crow. Count 5 charged the appellant with dangerous driving, contrary to section 2 of the Road Traffic Act 1988. The allegation here was that the appellant had been driving dangerously on the occasion when he collided with Mr Hanna.
9. The appellant and Miss Machin stood trial at Worcester Crown Court before His Honour Judge Callum and a jury. The principal witnesses called by the prosecution were Mr James Hanna, Mr Jonathan Crow and a friend of Mr Crow, called Mark Jones.
10. In relation to the second incident, Mr Crow gave evidence that the appellant and Miss Machin had arrived in some indignation on his front doorstep. The appellant was armed with a hammer and struck him with it on the head twice. The first blow had caused the gash on his head.
11. Mr Jones gave evidence which supported Mr Crow's account. Mr Jones said that he had been present when the appellant and Miss Machin arrived. Mr Jones had seen the appellant produce a hammer from his sleeve and use this to strike Mr Crow on the head.
12. The appellant gave evidence in his own defence. In relation to the second incident, the appellant admitted to punching Mr Crow but he denied having struck Mr Crow with a hammer. Indeed he denied having been in possession of a hammer at all. The appellant suggested that Mr Crow may have banged his head when he fell to the ground.
13. In closing speeches the prosecution maintained that the appellant had deliberately struck Mr Crow's head with the hammer which was the subject of count 4. The prosecution did not put forward any alternative route to conviction on count 3. Defence counsel maintained a denial of guilt on all counts.
14. Following closing speeches, the judge summed the case up to the jury. In relation to counts 2 and 3, the judge explained to the jury that if they did not find the offence proved under section 18 of the 1861 Act, they should consider whether the appellant was guilty of the lesser offence under section 20 of that Act. The judge also directed the jury to consider each count separately. In relation to that aspect the judge then added this comment:

"Of course, some of the evidence overlaps, one charge to another, so they're not necessarily to be considered totally in a bubble. For example, the possession of an offensive weapon, in relation to the hammer, against Mr Dobson has relevance of course to the latter part in relation to whether that was used subsequently."

15. The judge did not, however, direct the jury that if they acquitted on count 4, they must also acquit on count 3.

15. The judge dealt with the ingredients of each offence in the indictment separately. In relation to count 3 the judge said this:

"Count 3 is another section 18 charge but you will have noted that, unlike count 2, instead of causing grievous bodily harm, the offence is wounding, but again with intent to do grievous bodily harm. Here the prosecution must prove, (a) that the defendant wounded Jonathan Crowe, and that is caused a cut of the whole skin; that's what a wound means, it's a cut through the skin. And there is no issue that the cut to the head of Jonathan Crowe amounted to a wound which bled. That's accepted. (b) the prosecution must prove that the injury was caused unlawfully. That again is not in reasonable self-defence. It's not alleged that Stuart Dobson was acting in self-defence. (c) the prosecution must prove that the injury was caused maliciously by a deliberate assault and (d) again the prosecution must prove for count 3 that the defendant intended to do Jonathan Crowe really serious harm. In the context of this case, the prosecution say that is proved by an intention to hit him over the head with a hammer. Well note that the defence is that the defendant did not have a hammer and did not assault Jonathan Crowe. Although a cut was caused to the forehead and a bruise to the left eye in a scuffle, these are not the injuries which are the subject of the charge. So concentrate on the wound to the head because it is that that the prosecution must prove in this charge was caused by the defendant having a hammer and using it to hit Mr Crowe over the head in an assault and intending him to suffer serious harm, although in fact he did not suffer really serious harm; he suffered a wound.

So the prosecution have to prove that the defendant intended to cause really serious injury and they say 'Well, what else would you do when you hit someone over the head with hammer, other than intend to cause really serious harm?'

Again on count 3, the alternative charge would have to be considered if you were sure of some of the ingredients, and that's because there is an offence of wounding. So if you imagine count 3, the statement of the offence simply wounding, not with intent, you would have to consider that as an alternative charge. So on count 3 you will be asked 'Guilty or not guilty in relation to count 3?' So have the prosecution proved (a) and (b) and (c) and (d). If not guilty, you will then be asked, effectively, 'Well, have the prosecution proved (a), (b) and (c)?' which is the alternative offence of wounding. If the answer is yes, the prosecution have made you sure, then the defendant would be guilty of section 20 wounding."

16. Following that summing-up, the jury retired. In due course the jury returned the following verdicts. On count 1, they found Miss Machin not guilty of assault occasioning actual bodily harm. On count 2, the jury found the appellant guilty of causing grievous bodily harm with intent, contrary to section 18 of the 1861 Act. On count 3, they found the appellant not guilty of wounding with intent contrary to section 18 of the 1861 Act, but guilty of unlawful and malicious wounding, contrary to section 20 of the 1861 Act. On count 4, the jury found the appellant not guilty of having an offensive weapon. On count 5, the jury found the appellant guilty of dangerous driving.
17. The appellant appeared for sentence 3 months after the trial, namely on 30th March 2011. He was sentenced to four-and-a-half years' imprisonment on count 2. He was sentenced to 12 months' imprisonment on count 3 and 12 months' imprisonment on count 5, with both of the latter two sentences to be served concurrently with the four-and-a-half years imposed on count 2. The judge made a direction that 293 days spent in custody before the occasion of sentencing should count towards the sentence. The appellant was disqualified from driving for 3 years and directed to take an extended driving test. Also the judge made an order under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 for the forfeiture of his motor car, which had been used in the offences charged in counts 2 to 5 of the indictment.
18. The appellant was aggrieved by his conviction on count 3. Accordingly he appeals to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

19. The single ground of appeal is inconsistency of verdicts. Having been acquitted on count 4, the appellant maintains that the jury could not properly convict him on count 3.
20. Mr Jason Aris, on behalf of the appellant, submits that from beginning to end the prosecution case was presented on the basis that the wound the subject of count 3 was inflicted with a hammer. Neither prosecuting counsel nor the judge invited the jury to consider any alternative mechanism by which the appellant caused the wound to Mr Crow's head which is the subject of count 3. That remained the case whether the jury were considering the wounding under section 18 of the 1861 Act or under section 20 of the 1861 Act.
21. Mr P. Whitfield, for the prosecution, accepts that his case on the count 3 was presented at trial solely on the basis of a hammer blow. Nevertheless Mr Whitfield submits that, on the evidence, it was open to the jury to convict the appellant on count 3 of unlawful wounding on an alternative basis. That alternative basis was as follows. The appellant admits having punched Mr Crow in a manner which caused him to fall. The punch occurred by Mr Crow's front door, immediately next to a wall as shown in the photographs. The appellant said in evidence in-chief that Mr Crow may have banged his head as he fell. Thus, says Mr Whitfield, the jury may have concluded that although the appellant did not have a hammer he nevertheless caused a wound by punching Mr Crow, so that he fell and banged his head.
22. In support of his submissions Mr Whitfield relies upon three authorities, namely R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154; R v K [2011] EWCA Crim 1006 and R v A(B) [2011] EWCA Crim 869.
23. Before addressing the rival submissions of counsel on this appeal, we must first review the law.

Part 5. The Law

24. In R v Hunt (1968) 52 Cr App R 580 Lord Parker CJ stated the following test which should be applied in appeals based upon alleged inconsistent verdicts:

"He [the appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury or, that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that."

25. This statement has been adopted and applied by the Court of Appeal in a number of subsequent cases (see for example R v Durante (1972) Cr App R 708).
26. In R v Coutts [2006] UKHL 39; [2006] 1 WLR 2154, the victim died at the appellant's home. Her body was subsequently discovered naked and with a ligature (fashioned out of a pair of tights) around her neck. The appellant was charged with murder. The prosecution case at the trial was that the appellant had deliberately strangled the victim to satisfy his macabre sexual fantasies. The appellant contended that the victim's death had been an accident during consensual asphyxial sex. After the close of evidence, the judge invited submissions as to whether an alternative verdict of manslaughter should be left to the jury. The prosecution contended that, while there was a viable basis for such a verdict, it would be wrong to leave it to the jury when the case had been presented as a clear contest between deliberate killing and accident. The appellant, thinking it in his best interests not to do so, did not ask the judge to leave manslaughter to the jury. Accordingly, the judge did not do so. The appellant was convicted of murder. He appealed on the grounds that the judge should have left the alternative verdict of manslaughter to the jury. The Court of Appeal dismissed his appeal but the House of Lords reversed the decision of the Court of Appeal. The House of Lords quashed the conviction for murder, holding that in a trial on indictment any obvious and viable alternative verdict should ordinarily be left to the jury if there were evidence to support it, irrespective of the parties' wishes.
27. Coutts establishes the principle that the court is not confined by the way in which both parties present their respective cases. In an appropriate case the judge should invite the jury to consider convicting on an alternative basis which has not been canvassed by either prosecution or defence.
28. There have been many unsuccessful appeals based upon alleged inconsistency of verdicts. For example, a jury is entitled to accept some parts of a witness's evidence but to reject other parts. The mere fact that the jury acquit of one count, which depends on the evidence of a particular witness, does not mean that they must necessarily acquit of other counts depending upon the evidence of the same witness. (See R v A(B) [2011] EWCA Crim 869).
29. In R v Dhillon [2010] EWCA Crim 1577, this court quashed convictions for two sexual assaults on the grounds that those convictions were inconsistent with verdicts of not guilty on three other counts. Elias LJ, giving the judgment of the court, reviewed a long line of authorities starting with Durante and distilled the following principles at paragraph 33:

"1. The test for determining whether a conviction can stand is the statutory test whether the verdict is safe.

2. Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.

3. Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed.

4. The burden of establishing that the verdict is unsafe lies on the appellant.

5. Each case turns on its own facts and no universal test can be formulated."

30. I accept and gratefully adopt Elias LJ's formulation of the relevant principles, subject to one caveat. The explanation for inconsistency, referred to in proposition 3, must be an explanation which falls within the parameters of the case as summed up by the judge.
31. Finally, we should mention R v K [2011] EWCA Crim 1006, as this was one of the authorities cited by Mr Whitfield. K was a case in which this court adopted and applied the principles stated by Elias LJ in Dhillon.
32. With the benefit of this guidance from the authorities, we must now decide the issue in the present appeal.

Part 6. Decision

33. This case illustrates graphically the difficulties which arise when issues of law are not discussed between counsel and the judge at the end of the evidence and before the closing speeches and summing-up. What ought to have happened in this case is that the interrelationship between counts 3 and 4 should have been discussed. Prosecuting counsel should have stated whether he sought a conviction on count 3 in the event of an acquittal on count 4 and, if so, on what basis. In addition, defence counsel should have stated whether he wished the question of unlawful wounding, without the use of a hammer, to be left to the jury as a possible alternative verdict.
34. If such a discussion had taken place, each party would have had to make a tactical decision. There were both advantages and disadvantages for each party, flowing from the availability of the such an alternative verdict.
35. Following such a discussion, the judge would then have to decide whether to leave the alternative route to conviction on count 3 to the jury. He may have decided to do so, even if this was contrary to the wishes of both parties (see Coutts). When the judge came to sum the case up, he should have given a clear direction to the jury as to whether they could or could not convict on count 3, if they acquitted on count 4. If the judge considered that the jury could still convict the appellant on count 3 of unlawful wounding contrary to section 20 of the 1861 Act, he should have directed the jury as to the factual basis upon which (if proved to the requisite standard) they could so convict.
36. Unfortunately, in the present case none of this happened. Counsel did not raise the matter with the judge before closing speeches. The judge did not explicitly state in his summing-up whether the jury could convict of the section 18 or section 20 offence on count 3, if they acquitted on count 4.
37. This has resulted in a semantic debate before this court as to whether, in the passage from the summing-up quoted in Part 3 above, the judge was or was not inviting the jury to consider an alternative mechanism by which the appellant could have caused the cut to Mr Crow's head, if he did not use a hammer.
38. Having considered this debate and the helpful submissions of both counsel, our conclusions are as follows. The punch which caused Mr Crow to fall and to which the appellant admitted in cross-examination was part of the preliminary "scuffle", to which the judge referred in the twelfth sentence of the passage quoted in Part 3 above. It was made clear during the trial and confirmed in the summing-up, that the prosecution did not rely upon that preliminary scuffle in relation to count 3. Indeed it was for this reason that the appellant did not advance the plea of self-defence. In those circumstances, the proposition that the appellant wounded Mr Crow by punching him and causing him to cut his head, as he hit the wall, fell outside the parameters of this case as summed up by the judge.
39. Let us now draw the threads together. There is a logical inconsistency between the jury's verdicts on count 3 and count 4. There is a possible explanation for that inconsistency, but that explanation falls outside the parameters of the case as summed up by the judge. Accordingly, the appellant's conviction on count 3 must be quashed.
40. In the course of their submissions counsel made the point that this court has the benefit of hindsight. Accordingly, we should not be unduly critical of those who were conducting the case at first instance. We see force in that point and, at least on this occasion, we are not unduly critical. However, the lesson of this case is that whenever there is a possibility of inconsistent verdicts the matter must be properly discussed between counsel and the judge before closing speeches and summing-up. The judge will thereafter sum the case up in the manner in which he has indicated during that discussion, whether or not that accords with the wishes of the parties.
41. The consequences of failing to follow such a course are plain. First, there is need for an appellate hearing, when none should have been necessary. Secondly, in some cases a conviction, which is otherwise perfectly logical, may have to be quashed. Thirdly, in other cases, a wrongful conviction is only reversed after months of custody of an innocent defendant.
42. Reverting to the present case, for the reasons indicated above, the appellant's conviction and sentence on count 3 are quashed. This appeal is allowed to that extent.