England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		18th March 2014

1. MR JUSTICE KEITH: As a result of the judgment of the Court of Appeal in DPP v Little [1992] 2 WLR 460, the offence of battery is nowadays described as "assault by beating". This appeal relates to when someone should be charged with assault occasioning actual bodily harm as opposed to assault by beating. And where a defendant is charged with assault by beating, is it permissible for the judge to invite the prosecution to amend the charge to one of assault occasioning actual bodily harm if the judge thinks that would be the more appropriate charge? The applicant is Dominik Wielgus. He was convicted of assault occasioning actual bodily harm following a trial at Isleworth Crown Court before Judge Lowen and a jury. He subsequently received a community sentence from another judge. His application for leave to appeal against his conviction has been referred to the Full Court by the Registrar. We intend no discourtesy to the applicant if from now on we refer to him by his surname for convenience.
2. Wielgus and his girlfriend, Maha Ali, had spent the evening in question at his flat with friends of theirs. The prosecution's case was that in the course of the evening Wielgus had subjected Miss Ali to a sustained and unprovoked attack, which began in the kitchen, continued in the bathroom and then in his bedroom. She was to claim that he tried to throttle her in the course of the attack. It resulted in Miss Ali being cut, scratched and bruised, and culminated in Wielgus putting a gun which fired ballbearings to Miss Ali's head and threatening to kill them both. While all this was going on, Miss Ali sent a text to her mother asking for the police to be called. Miss Ali's sisters got to hear about that, and they both went to Wielgus's flat. They got into an argument with Wielgus, and Wielgus was alleged to have attacked them as well.
3. Wielgus was indicted on three separate counts of assault by beating relating to his alleged attacks on Miss Ali and each of her sisters. He faced a separate count relating to the gun. He was acquitted on the two counts which related to Miss Ali's sisters, and the jury was discharged from returning a verdict on the count relating to the gun when they could not agree on their verdict. This application for leave to appeal only concerns the count relating to the attack on Miss Ali, which as we have said originally charged with Wielgus with assault by beating. That was the charge on which he was arraigned, to which he pleaded not guilty and on which he was put in the jury's charge.
4. At the conclusion of the opening speech by counsel for the prosecution and in absence of the jury, the judge raised the question whether Wielgus should be facing a charge of assault occasioning actual bodily harm. He had by then seen the photographs of Miss Ali's injuries. Counsel for the prosecution told the judge that the decision to charge Wielgus with assault by beating had been taken in accordance with the Crown Prosecution Service's Charging Standards. The judge decided to leave the matter where it was for the time being.
5. The judge returned to the issue at the conclusion of Miss Ali's evidence-in-chief. He accepted that the injuries which Miss Ali claimed to have received were the kind of injuries which were generally charged as assault by beating, but he took the view that her injuries could not be looked at in isolation from the nature of the attack to which she had allegedly been subjected. He was therefore thinking of amending the indictment to substitute a count of assault occasioning actual bodily harm for the count of assault by beating. Counsel for the prosecution contended that the judge did not have the power to do that of his own motion, but having obtained instructions, counsel for the prosecution then applied for the count to be amended in that way. Despite objections from the defence, the judge granted the application. In due course, he rejected a submission at the close of the prosecution's case that Wielgus had no case to answer on the count of assault occasioning actual bodily harm, saying that there was evidence on which the jury could find that Miss Ali had been assaulted and that her injuries amounted to actual bodily harm.
6. Section 5(1) of the Indictments Act 1915 provides:

"Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice."

An indictment has been held to be defective where a particular count in it does not accord with the evidence. Since there was evidence that Wielgus had assaulted Miss Ali, and that Miss Ali had been cut, scratched and bruised in the course of that assault, it was accepted that the indictment could be said to have been defective so as to give the judge the power to substitute a count of assault occasioning actual bodily harm for the count of assault by beating. The question was whether that amendment could be made without causing Wielgus any injustice.

7. We deal first with the argument that requiring Wielgus to face a count of assault occasioning actual bodily harm was contrary to the Crown Prosecution Service's Charging Standards. The relevant passage in the charging standard relating to offences against the person was as follows:

"As a starting point, where there is no injury or injuries which are not serious, the offence charged should generally be Common Assault. Where there is serious injury and the likely sentence is clearly more than six months' imprisonment the offence charged should generally be ABH."

The injuries which Miss Ali received were not serious. It was for that reason that the judge accepted that they were kind of injuries which were generally charged as assault by beating. But the standard went on to say this:

"Very occasionally, it will be necessary to depart from this basic approach in cases where the injuries are at the lower end of the scale of seriousness. In such cases the level of injury will not be the only factor to be considered, as this may not alone accurately reflect the nature and seriousness of the offence as a whole. The presence of aggravating factors will be highly relevant to the likely sentence - by way of example, an injury may not of itself turn out to be serious but the manner in which it was caused (such as through strangulation) may indicate that a sentence of more than six months is likely. However, the aggravating factors should never in themselves be the basis for deciding the appropriate charge."

8. In his ruling, the judge said that he had in mind, amongst other things, "the manner of the offence being committed and the overall criminality". He was, no doubt, referring to Miss Ali's evidence, which had been that Wielgus had smacked her in the face, dragged her into the bathroom, pushed her into the bath and turned the shower on. She had gone on to say that after she had managed to get out of the bath, Wielgus had dragged her into his bedroom, where he had slapped her in the face, held her throat with both his hands, threatened to kill her and then poured the contents of a bottle of wine over her. In our view, her evidence, if accepted by the jury, was such as to make the incident far more serious than the injuries she in fact sustained might suggest, and there was the possibility that a sentence of more than 6 months' imprisonment might be appropriate. In the circumstances, we cannot say that requiring Wielgus to face a charge of assault occasioning actual bodily harm was contrary to the charging standard, though we should add that even if it was, it is questionable whether that should afford a ground of appeal in the event of a conviction following an unimpeachable finding that the defendant had a case to answer.
9. The next question is whether the fact that the initiative for amending the indictment came from the judge meant that the amendment could not be made without injustice to Wielgus. We think not. A judge is entitled to express his own view about whether the charge which a defendant is facing is the appropriate one, provided that it is always appreciated that it is the prosecuting authority and not the judge which has the final say about whether someone should be prosecuted at all, and if so, what the appropriate charge should be. That is what happened in the present case. Although the indictment would not have been amended but for the intervention of the judge, it was ultimately the prosecution which applied for the amendment to be made.
10. The final question is whether there were any other considerations which would have made it unjust for the amendment to be made. In the light of Mr Meikle's grounds of appeal, we have considered three possibilities. First, was it too late for the amendment to be made? We think not. Wielgus' case was that he did not attack Miss Ali. To the extent that he was violent towards her, he was only defending himself from being attacked by her. The change of charge did not result in his case having to be run any differently from the way it would have been run if the indictment had not been amended, or if the indictment had charged Wielgus with assault occasioning actual bodily harm in the first place. Secondly, it is argued that the amendment resulted in injuries of the same seriousness, ie those sustained by Miss Ali's sisters, as those sustained by Miss Ali being tried as different offences. That may have been so, but there were significant differences between the nature of the alleged attack on Miss Ali and Wielgus' alleged attack on her sisters. He was alleged to have punched one of the sisters in the face just the once and to have merely pushed the other in the face.
11. Thirdly, reliance is placed on the fact that Wielgus was acquitted of assaulting Miss Ali's sisters and that the jury were unable to reach a verdict on the count relating to the gun. It is said that the jury must have regarded Miss Ali's evidence as unreliable, and they could only have convicted Wielgus of assaulting her occasioning her actual bodily harm on the basis of his account of what had happened, namely that he had done no more than he was entitled to do in order to defend himself. His account, so it is said, would not have justified a charge of assault occasioning actual bodily harm. But that is to put the cart before the horse. Whether the charge was justified depended on Miss Ali's account of what happened, not his. On her account, the charge was justified even if the jury was eventually not satisfied of her account. In the event, though, we see no basis for saying that the jury was not satisfied of her account of what Wielgus did to her. The fact that some of the jurors may not have been sure about her evidence about the gun, or that none of the jurors had been sure about what Wielgus had done to her sisters, does not mean that they were not sure about Miss Ali's evidence about what he had done to her.
12. In the circumstances, we do not think that any injustice was done by the count of assault by beating being replaced by the count of assault occasioning actual bodily harm. This application for leave to appeal against conviction must be refused.