England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 June 2013

1. LORD JUSTICE ELIAS: On 6th July 2012 at the Crown Court at Snaresbrook before His Honour Judge Peters, the appellant was convicted upon a retrial of inflicting grievous bodily harm. On 13th August 2012 he was sentenced to 12 months' imprisonment suspended for 24 months with a six month curfew requirement. He was also ordered to pay £1,000 compensation to the victim to be paid within two months. He now appeals against conviction by leave of the single judge.
2. The background was this. At approximately 2.45 on 28th March 2011, the victim was travelling in his car along Reede Road in Dagenham. He was in a line of traffic. A silvery-blue Audi vehicle came out of the driveway of 19 Reede Road and drove off in the opposite direction. This was where the appellant lived with his parents. He was the owner of the Audi. The victim continued to wait in traffic. He became aware that the driver of the Audi was shouting at him, but the victim was unable to move his car due to the traffic. The driver of the Audi threw a packet of Mintos (which were sweets) at the victim, which struck the side of his face. The victim got out of his car to remonstrate with the other driver. The driver of the Audi delivered a single punch to the victim's face and the victim was thrown against the car. A passer-by separated them. The Audi then went into a Lidl car park and the victim went home. The victim began to feel ill. He was attended by a neighbour and eventually went to hospital. He in fact suffered a fractured jaw which had to be reset and secured with metal plate and screws.
3. The victim gave a description of his assailant and a number plate recognition camera in the car park showed the Audi going into the car park at the material time and it enabled the police to trace the appellant.
4. The police invited the appellant for interview. He voluntarily attended and at that interview he accepted that he was present at the scene, although he denied actually striking the other driver. He also denied throwing any sweets.
5. He subsequently instructed solicitors and in a document submitted to the prosecution he stated that he had not been at the scene of the incident and in fact he had been at Kingston University at the relevant time. He produced some evidence in support of that alibi. The prosecution case was that he was the assailant and he was linked to the incident by his car.
6. The single ground of appeal is whether the judge ought to have left to the jury the possibility that the appellant had acted in self-defence. The appellant had contended before the judge that notwithstanding that his case was alibi and that he was not present at the scene, nevertheless there was evidence from which a jury could infer that if he was at the scene he was acting in self-defence. Reliance was placed on the decision of the Privy Council in Director of Public Prosecutions (Jamaica) v Bailey [1995] 1 CrAppR 257 in which Lord Slynn delivering the judgment of the Board said this at page 260:

"It is clear that perfectly hopeless defences which have no factual basis of support do not have to be left to the jury. But it is no less clear, in their Lordships' view, that if the accused's account of what happened includes matters which if accepted could raise a prima facie case of self-defence this should be left to the jury even if the accused has not formally relied upon self-defence."

This passage focuses solely on the accused's account but Lord Slynn referred with approval to the judgment of Stephenson LJ in Bonnick (1978) 66 Cr.App.R 266 which did not limit the principle in that way. The judge said this at page 269:

"When is evidence sufficient to raise an issue, for example, self-defence, fit to be left to the jury? The question is one for the trial judge to answer by applying common sense to the evidence in the particular case. We do not think it right to go further in this case than to state our view that self-defence should be left to the jury when there is evidence sufficiently strong to raise a prima facie case of self-defence if it is accepted. To invite the jury to consider self-defence upon evidence which does not reach this standard would be to invite speculation. It is plain that there may be evidence of self defence even though a defendant asserts that he was not present, and in so far as the judge told the jury the contrary, he was in error..." (our emphasis)

The learned judge in this case was not impressed by the appellant's submissions. He thought that where the defendant's case was one of pure alibi - that he was somewhere else - it would have been "wholly ridiculous" to say to the jury that even if the appellant was there, the jury should consider the issue of self-defence. The judge noted that the principle in Bailey required the evidence if accepted to raise a prima facie case of self-defence. He did not accept that he could do so in the circumstances of this case. He said this:

"In my judgment, it could never be accepted by this jury, thereby making out a case out of self-defence, because this defendant was never there. The directions in law which I would have to have given to the jury on self-defence would have to have been: this defendant, did he act in reasonable self-defence? There is not a shred of evidence that he acted in reasonable self-defence, because he was never there, and therefore it would have been the theatre of the absurd as far as this jury is concerned, if I had embarked on any direction that would have addressed the issue of self-defence by this defendant, when his case is that he was at the other side of London, in Surrey, on his studies."

It may be that although the judge was referred to Bailey he was not referred specifically to the particular passage in Bonnick where the court stated that where there is prima facie evidence of self-defence the judge should leave that defence to the jury even though the defendant's case is that he was somewhere else.

7. The question in this case is whether there was prima facie evidence of self-defence. We have no doubt that there was. We have read the transcript of the evidence of the complainant given before the jury. He agreed that he had got out of the car and he had the Mintos at that time in his right hand. It was put to him that in his statement to the police he had suggested that his attacker might have thought that he (the complainant) was about to hit the attacker and he agreed that this was possible. He explained why his assailant might have been under that misconception: "I put it down to the fact that I had the Mintos in my hand and I went up to him, but may be he thought I was going to ... strike him first." He also said that he and the assailant had to be pulled apart.
8. We have no doubt that in principle that is prima facie evidence from which the jury could have inferred that the appellant may have been acting in self-defence. It would of course have been for the prosecution to negate that defence. The judge could not, with respect, say that there was not a shred of evidence that he acted in self-defence because he was never there. It was the prosecution case that he was there and the jury's verdict demonstrates that they were sure that he was. We do have some sympathy with the judge's robust reaction to the contention that self-defence should have been left to the jury in a case of this nature, but the authorities on the point are clear. Indeed counsel for the Crown accepts that the direction ought to have been given, although perhaps in retrospect it was unfortunate that the Crown took a neutral stance on the question before the judge. What counsel now submits is that the conviction is safe in any event. Counsel points to the overwhelming evidence to establish that the appellant was at the scene. We do not dispute that. The evidence was extremely strong. But presence does not assist with the question whether, if he was there and if he did deliver the blow as alleged, he might have been acting in self-defence.
9. It seems to us that once we are satisfied, as we are, that there was sufficient evidence for this matter to go to the jury, that is on the premise that there was evidence on which a reasonable jury could conclude that the defendant acted in self-defence or at least may have done. It follows that the jury did not consider a potential defence which, had they done so, might have led to the acquittal of this defendant. In those circumstances, it is simply not possible to say that the verdict is safe. Accordingly, the appeal is upheld and the verdict has to be quashed.
10. MISS AKUDOLU: My Lord, I am obviously in the event of the appeal being allowed instructed to seek a retrial. Notwithstanding of course the passage of time, the offence dating back to March 2011, the issues in this case are fairly narrow.
11. LORD JUSTICE ELIAS: This was a retrial.
12. MISS AKUDOLU: This was a retrial, yes. It is of course a matter entirely for your Lordships' discretion.
13. MR LAW: My Lord, clearly it is a matter in the discretion of this court, but if I could point to the very lengthy passage of time from which the complainant of course suffered serious injuries, but at no stage was Mr Mula, who now sits behind me, my Lord, formally identified.
14. LORD JUSTICE ELIAS: Presumably he has served the curfew?
15. MR LAW: Yes, my Lord, much of the curfew order and of course there was a compensation order and costs that have been paid within the specified period. My Lord, I do not think I can add much more.
16. LORD JUSTICE ELIAS: No. We do not think there should be a yet another trial in the circumstances. Thank you both very much.