England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th June 2014

1. LORD JUSTICE BEATSON: This is an appeal by Georgina Vaughan, now aged 42, by limited leave of the single judge, against her conviction, following a trial in the Crown Court at Wood Green before Mr Recorder Bourne and a jury, of a single count of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act. The conviction was on 24th July 2013 and on 6th September 2013, before the same court, she was sentenced to 4 years' imprisonment. The appellant also appeals with the leave of the single judge against that sentence. Her co-accused, Aaron Vaughan, her son, was acquitted of causing grievous bodily harm with intent.
2. The appellant and her son knew the complainant, Tammy McCabe, and they all lived in North London. Tammy McCabe maintained that in August 2012 Aaron Vaughan, who was a user of illegal drugs, stole some of her belongings and she then made numerous attempts to retrieve them. She was able to recover all the belongings save for an iPhone belonging to her son.
3. On 15th September 2012 she visited the address of Aaron Vaughan's grandmother, Pauline, who lived about 5 minutes' walk from her home. She said that she told Aaron that she wanted her son's phone back and if she did not get it she would report the matter to the police. She maintained that he then became aggressive and said that he was going to get his mother to beat her up. She said that she then went home and in the end decided not to report the matter to the police.
4. On the same morning a female, whose description, given by a neighbour of Pauline Vaughan, matched Tammy McCabe's description, smashed a number of windowpanes at Pauline Vaughan's house. The neighbour, Christopher Warren, gave evidence that he was at home when he heard the sound of breaking glass. He looked out and saw a woman with long blonde hair in her mid 20s smashing the windowpanes of Pauline's house with a blue and orange two-handed spanner with a ratchet. He said that a man approached her and she swung at him before walking away with the spanner. He was shown a wrench described as Exhibit 1 which he said was similar to and the same colour and design as the one used by the woman.
5. At approximately 5.30 pm that day the appellant and Aaron Vaughan went to Tammy McCabe's house. The appellant knocked on the door and Aaron stood by the gate. Tammy McCabe came outside. She and the appellant began to fight and she ended up on the floor outside her house. During the fight a weapon described as a monkey wrench was used. A monkey wrench was seized from the location and examined but no identifiable fingerprints were found on it. It was Exhibit 1.
6. Tammy McCabe was taken to hospital after the incident. She had a 1 centimetre laceration to the side of her head, bruises under her left eye, multiple bruises and abrasions on her chest, hands and arms, a 3 centimetre laceration on the palm of her hand, fractured ribs and a partially collapsed lung. She had a chest drain inserted, was prescribed general analgesic pain killers and was an in-patient for 9 days.
7. The appellant was arrested on 19th September. When interviewed she declined to answer any questions but relied on a prepared statement in which she said that Tammy McCabe had attacked her and she had acted in self defence.
8. Tammy McCabe's evidence was that when she opened the door the appellant raised both hands and struck her on the right side of her head with an implement. She said that she raised her hands in defence and the implement hit and cut her hand which bled heavily. She stated that the implement was the monkey wrench that was Exhibit 1 in the trial. She also stated that she was then struck to the other side of her face and that there were then blows to her arms and head and she ended up falling in the gravel. She said as she was lying on the floor drifting in and out of consciousness the appellant stamped on her head and kicked her in the ribs. She stated the attack lasted for several minutes which felt longer and that the appellant ran off when a neighbour came over.
9. Tammy McCabe denied breaking the windows at Pauline Vaughan's house and denied being drunk at the time she was assaulted. She also denied the allegation made by the Vaughans that she had a sexual relationship with Aaron Vaughan and that she had sold her personal belongings, in particular a Rolex watch for drugs.
10. The appellant stated in her evidence that she had known Tammy McCabe for a number of years and believed she was having a sexual relationship with Aaron. She said that Tammy kept asking her for money which she said Aaron owed her. She stated that she was aware of the damage to the windows of her mother's house during the afternoon of 15th September, that Aaron had told her that Tammy was in a terrible state, and that they went to Tammy's house to check on her well being and welfare.
11. The appellant stated that when Tammy McCabe answered the door she seemed angry and was armed with a monkey wrench. She looked as though she had been in a fight and had injuries to her face. She hit the appellant on the top of her head and the palm of her hand. As she took another swing at the appellant the appellant grabbed hold of the monkey wrench and they began struggling. The appellant tried to disarm Tammy McCabe and defend herself and in so doing they both fell to the floor, the appellant landing on top of Tammy McCabe, who hit her head on a wall. The appellant said that Aaron then picked her up, that he threw the monkey wrench on the floor and they walked off. She said she had a number of injuries which she pointed out to her doctor.
12. Aaron Vaughan's evidence was that he lived at his grandmother's house so that he could keep an eye on her mental health. He stated that he had begun a relationship with Tammy in August 2012 and that in the days leading up to the incident he had been staying at her house and they had been drinking and taking drugs with other people. He said that this came to an end on 15th September as they had run out of money. He stayed in the house but Tammy went out and returned a short while later with a cut to her head, which was bleeding heavily. She was irate. She was screaming and shouting. He said that he helped clean her up and then he went to his grandmother's house. Approximately 15 minutes later Tammy came round with a weapon and smashed the windows of his grandmother's house before storming off. Shortly after that he and the appellant went to Tammy McCabe's house to see if she was all right. When she opened the door she was holding a monkey wrench with which she proceeded to hit the appellant on the head. Aaron Vaughan said that the appellant managed to put her hand up and get hold of the weapon following which the two women fell over in the garden and he got hold of the wrench and threw it on the doorstep.
13. Detective Constable Griffin, who attended Tammy McCabe's address on 15th September in order to arrest her for criminal damage to the nine windowpanes earlier in the day, said she was intoxicated. He could smell alcohol on her breath and she was unsteady on her feet. She took notes about the assault and she accompanied Tammy to hospital. There was also evidence before the jury that Tammy McCabe had been tried for criminal damage in respect of the broken window pains and that Christopher Warren did not give evidence at that trial.
14. The prosecution case was that the appellant, with Aaron Vaughan, went to Tammy's house armed with a monkey wrench and deliberately assaulted her, intending to cause her serious injury. They relied on the multiplicity of the blows to show the intent. The appellant's case was self-defence. She stated that she went to Tammy's house to check if she was all right but that when Tammy opened the door she attacked her with a monkey wrench.
15. In its closing speech to the jury the prosecution inter alia commented that Tammy McCabe's injuries were consistent with her account and suggested that her smashing of Pauline Vaughan's windows provided the appellant and her son with a motive to commit the offence. The issue for the jury was thus whether the appellant was the aggressor or acted in self-defence.
16. The only count left to the jury was the section 18 count. Neither the prosecution nor the defence invited the learned Recorder to leave the alternative verdict, under section 20 of the Offences Against the Person Act 1861, to the jury. In his summing-up the Recorder stated at page 4A-C:

"Let us look please, at the charge that the defendants face. Before we find the indictment,... let me remind you that this is the only charge in this case. You are not here to consider any other allegation you have heard about during the course of the evidence. Put out of your mind allegations of theft or drug taking, which you heard about in relation to both the complainant and the second defendant, Aaron Vaughan and put out of your mind any other verdicts that another court may have reached in relation to another allegation that you heard about in this case, namely criminal damage."

17. The Recorder also gave the jury a direction on self-defence (summing-up pages 5-7) about which there is no complaint. It included a direction, as it had to, that the jury was to decide if the jury was sure of the assault, whether the type and amount of force was reasonable. The Recorder stated, at 6E and F-7C:

"You must then decide whether the type and amount of force she used was reasonable. Obviously a person who is under attack may react on the spur of the moment and she cannot be expected to work out exactly how much force she needs to use to defend herself. On the other hand, if she goes over the top and uses force out of all proportion to the attack on her or more force than is reasonably necessary to defend herself, the force used would not be reasonable.

So, you must take into account both the nature of the attack on Mrs Vaughan and what she then did. It is her case that Mrs McCabe in fact came towards her as she approached the front door and hit her twice with the item we are calling exhibit 1... and that she has then attempted to take hold of the weapon that Mrs McCabe had in her possession to avoid further injury.

The complainant, she said, already appeared to be injured when Mrs Vaughan first saw her and that was confirmed by Mr Vaughan. The two women fell to the floor and struggled for some time before her son helped the two women to separate and Mrs Vaughan and her son then left, leaving behind the weapon which they claimed belonged to Mrs McCabe. If you are sure that the force Mrs Vaughan used was unreasonable, then she cannot have been acting in unlawful self-defence. But if you think that the force Mrs Vaughan used was or may have been reasonable, she is entitled to be acquitted."

18. The jury retired to consider their verdicts at 3.30 pm on Tuesday 23rd July and continued their deliberations on Wednesday 24th July. It was indicated to the court that they had reached a verdict, and the jury returned to court at 1.05 on 24th July. At that stage the clerk of the court addressed the jury as follows (Volume II, page 29H-30):

"THE CLERK OF THE COURT... Mr Foreman, please confine yourself to answering my first question 'yes' or 'no'. Have you reached a verdict upon which you are all agreed?

THE FOREMAN: Yes.

THE CLERK OF THE COURT: On the charge of causing grievous bodily harm with intent, do you find Georgina Vaughn guilty or not guilty?

THE FOREMAN: Guilty.

THE CLERK OF THE COURT: Guilty. And Aaron Vaughan, guilty or not guilty?

THE FOREMAN: Not guilty.

THE CLERK OF THE COURT: Not guilty. Is that the verdict of you all?

THE FOREMAN: Yes."

19. There are six grounds of appeal against conviction and there is also an appeal against sentence. Leave was granted for two of the grounds of the appeal against conviction and leave was granted to appeal against sentence. The application for leave to appeal against conviction was renewed for the four grounds upon which it was refused, but although Mr Abzarian did not formally abandon grounds 2 and 4 he did not vigorously pursue them.
20. The first ground was that the Recorder erred in the direction he gave about the criminal damage allegation. It was submitted by Mr Abzarian that he erred in directing the jury to put the allegation of criminal damage out of their minds. It was argued that this was a material error because the allegation was relevant to the issues in the case for a number of reasons. First, it undermined the evidence of Tammy McCabe and supported the appellant's self-defence defence for a number of reasons. It suggested that Tammy McCabe and not the appellant was in possession of the monkey wrench at the start of the incident. It also suggested that she was very angry with the Vaughan family on the day of the incident.
21. The criminal damage allegation was also, submitted Mr Abzarian, relevant because it undermined Tammy McCabe's credibility. The jury would, in the light of that direction, have ignored relevant evidence. There had been no suggestion that Christopher Warren was lying in his evidence about the criminal damage. These factors were relied on as showing that the omission rendered the conviction unsafe. Indeed the Crown had suggested that the smashing of the windows provided the appellant with a motive for an attack on Tammy McCabe. Any adverse effect which consideration of this evidence would have had on the appellant's case, submitted Mr Abzarian, was heavily outweighed by these factors. Leave was refused on this ground.
22. The second ground of appeal concerned interventions by the learned Recorder on two occasions to stop the appellant's counsel in the course of his cross examination of Tammy McCabe, when he was putting inconsistencies between her evidence in chief and the contents of her witness statement to her. It was stated that the judge was wrong to intervene and that, applying the test in R v Matthews (1984) Cr App R 23, the interventions would have affected the jury's perceptions of the attitude of the Recorder to the efficacy of the attack counsel was making on Tammy McCabe in cross-examination.
23. It was argued that the jury would have thought that the Recorder did not think that any inconsistency was important and that his interventions "questioned whether it was necessary to go through the inconsistencies at all." Additionally it was submitted that the intervention gave the impression that the Recorder was persuaded by Tammy McCabe's explanation for the inconsistencies. This was that she had not been in a fit state to make the statement. There was, however, submitted Mr Abzarian, evidence by a police officer that she was fit to give a statement, that a detailed 12 page account was taken from her and read back to her and that she had insisted on further details being added to it. Leave was refused on this ground.
24. The third ground was that the Recorder failed to direct the jury to ignore inadmissible hearsay evidence, referred to by Aaron Vaughan's counsel when cross-examining Tammy McCabe. The evidence referred to a statement by another person which was inadmissible hearsay. It is submitted that, although the judge told Aaron Vaughan's counsel to move on from this line of questioning, he should also have made it clear to the jury at that time that anything said should be ignored and that he should also have directed the jury in his summing-up to ignore the references to the statement which was prejudicial to the appellant. Leave was granted on this ground.
25. The fourth ground of appeal against conviction concerns comments in the prosecution closing speech. We have referred to the comment that Tammy McCabe's injuries were consistent with her account. It was submitted that comments was impermissible because it was a matter for expert evidence and no such evidence had been adduced. It is contended that the judge should have directed the jury to ignore the comment because they were prejudicial to the appellant and wrongly suggested that medical evidence supported Tammy McCabe's account or was inconsistent with the appellant's case. Leave was refused on this ground.
26. The fifth ground of appeal was that the Recorder failed to leave to the jury the possibility of convicting the appellant of inflicting grievous bodily harm contrary to section 20. It was argued that this failure rendered her conviction unsafe. A verdict of inflicting grievous bodily harm is an available alternative on a charge of causing grievous bodily harm with intent and this should have been left to the jury. It was also argued that a second alternative of section 47, assault occasioning actual bodily harm, should also have been left to the jury because the injuries caused to Tammy McCabe by the appellant were also in dispute.
27. Mr Abzarian submitted that in light of the decisions in R v Lahaye [2005] EWCA Crim 2847, [2006] 1 Cr App R 11, R v Coutts [2006] 1 WLR 2154 at 2167 and 8 and R v Foster [2007] EWCA Crim 2869, [2008] 1 Cr App R 38, an alternative section 20 count should normally be included in an indictment alleging a section 18 offence.
28. Secondly, he submitted that in this case, as the question of intent was in issue, section 20 was an alternative verdict which was "obviously raised by the evidence". Accordingly, it was ultimately the responsibility of the judge to raise it, whether or not the prosecution or the defence did so. He argued that it was precisely in a case such as this, where the defence may not have expressly sought this alternative for tactical reasons, that the judge has this responsibility. Leave was granted on this ground.
29. The sixth and final ground of appeal against conviction was that the way the verdict was taken left open a possibility that the verdict in respect of the appellant was not unanimous. In the light of the authorities, the departures from the standard way of proceeding in the Practice Direction meant that the conviction was not safe. Leave was given on this ground.
30. Mr Abzarian accepted that grounds 2, 3 and 4 did not render the conviction unsafe in isolation but submitted that in combination with the other grounds they did so.
31. We indicated at the outset of the hearing that we granted leave on ground 1. We now turn to our conclusions. We deal first with grounds 1 and 5. We do so because there are links between material relied on and the submissions made on these grounds and so we deal with these grounds first.
32. On ground 1, Mr Donnelly submitted, in his perfected notice dated 6th November, that the passage from page 4 of the summing-up which we have set out, indicates that the Recorder did not direct the jury to ignore the criminal damage allegation. The Recorder quite properly directed the jury to focus on the evidence in this case. The Recorder distinguished what he said about "allegations of theft or drug taking" from what he said about the criminal damage. The latter related only to "any other verdicts that another court may have reached" rather than the allegation itself.
33. Mr Donnelly developed this submission orally. He argued that in relation to the criminal damage the Recorder was only telling the jury to ignore the acquittal and not the allegation itself or the evidence about it which they heard. It would, he argued, have been clear to the jury that the only issue about criminal damage which he was directing them to ignore was a verdict in another trial. This was so not only because of the language of the direction but because the criminal damage allegations played a major role in the trial in relation to motive. Moreover, there were many references to elements of the criminal damage allegation in the summing-up. The Recorder referred to this when summing-up Tammy McCabe's evidence at page 15C, and her evidence about the windows being smashed at 16, and at 20E, when summarising Aaron's evidence. He also referred to it when summarising Mr Warren's evidence, which of course was about this topic.
34. We accept that the learned Recorder probably intended his direction to be understood in the way for which Mr Donnelly contended. But we have concluded that the Recorder's direction was at its lowest significantly misleading and did not give the jury the guidance that they needed. The allegation of criminal damage was relevant to the issues in the case, for the reasons given by Mr Abzarian. It was in our view of importance to those issues. If the complainant had committed the criminal damage and taken the tool with her after doing so, then she could not, as she claimed in evidence, have been attacked by the appellant with the tool immediately after opening her front door and her entire story was put into question.
35. As to the direction itself, unlike counsel and the court, the jury did not have the benefit of a text to consider because obviously the direction was an oral one. The sentence "let me remind you that this [which is a reference to the section 18 charge] is the only charge in this case. You are not here to consider any other allegation that you have heard about during the case" would, in our judgment, have led the jury to ignore the evidence about the allegation of criminal damage.
36. A fine analysis of the difference in the way the reference to the allegations of theft and drug taking was formulated and the way the reference to the allegation of criminal damage was formulated does reveal a difference of the sort to which we have referred when summarising Mr Donnelly's submissions.But we do not consider that, when delivered orally, it even begins to alert a jury that the clear words of the second sentence that we set out should be qualified. Nor do we consider that the references to the allegation of criminal damage and the evidence relating to it elsewhere in the summing-up would have made it clear to them that it was only the verdict that they were to disregard.
37. As Mr Abzarian stated in reply, the Recorder undoubtedly told the jury to ignore the allegations of theft and drug taking, but he referred to them in his summing-up, for example, when summarising Aaron's evidence at 22 to 23 and when summarising Tammy's evidence at 11. Moreover, those allegations also played a major role in the trial and were initially said by the prosecution to be the motive for the assault.
38. We also note that the treatment of Christopher Warren's evidence in the summing-up at 24G-26A was properly purely descriptive. But in the absence of any contextualisation there or anywhere else in the summing-up there was nothing to alert the jury of its possible implications for the appellant's claim that she acted in self-defence. The judge did not explain to the jury how their consideration of that allegation would work on the issue of who was initially wielding the spanner. If they were to conclude that Tammy may have committed the criminal damage, wielding a spanner which looked similar to Exhibit 1, that was an important matter to consider when deciding whether the prosecution had satisfied the jury that they were sure that the appellant did not act even initially in lawful self-defence when there was an altercation at Tammy's front door. We have concluded that the jury was left without any significant guidance on what was, in the light of the factual scenario, a somewhat complex legal and factual situation. We shall return to this when dealing with ground 5. As a consequence, because the jury probably ignored a relevant issue which was of importance to one of the issues in the case, we have concluded that the error renders the conviction unsafe.
39. It is true, as the prosecution argued, that the criminal damage incident as asserted by the appellant would have provided her with a motive for assaulting Tammy McCabe. But we reject the submission that for that reason and because the defence statement did not refer to the criminal damage, the direction does not render the conviction unsafe.
40. We turn to ground 5. Mr Donnelly submitted that it was not incumbent on the Recorder to leave a section 20 count as an alternative to section 18. He submitted that in a context where the appellant's case was self-defence and where the prosecution's position throughout was that the appellant acted with the requisite intent to cause really serious harm ie grievous bodily harm, adding a count charging her with a section 20 and/or a section 47 offence would have distracted the attention of the jury.
41. Relying on the judgment of this court in Foster's case at [61], Mr Donnelly also argued that a verdict on section 20 would have been a compromise verdict, which did not reflect the real issues in the case. For that reason he maintained that the Recorder was not obliged to leave it to the jury. It would have been such a verdict, he argued, because the Crown had nailed its colours to the mast that the appellant was the aggressor and attended armed with a weapon and that, given the nature of the weapon and the prolonged nature of the attack, the appellant intended to cause grievous bodily harm. To have sought or canvassed a section 20 count as an alternative would have been a radical departure. Similarly, the appellant did not accept that any action attributable to her could have caused the lacerations to the complainant.
42. Mr Donnelly in particular directed our attention to the passage from R v Banton [2007] EWCA Crim 1847 cited in Foster at [58]. This court, when dismissing an appeal that was based on an argument that an offence contrary to section 20 should have been left to the jury as an alternative to section 18, observed:

"... realistically it is hard to imagine that the jury would have convicted the appellant of wounding with intent unless they accepted the prosecution witnesses' account of what she did.'"

Toulson LJ, delivering the judgment of this court, had earlier stated that the foundation of the prosecution's case in Banton was that the appellant smashed a bottle in the complainant's face, which the appellant denied and that had presented the jury with a stark question of fact. Toulson LJ stated that for the prosecution to have sought the appellant's conviction on a different factual basis would have been a radical departure from the case presented:

"The existence of some possible evidential basis for such an alternative verdict would by no means necessarily be a sufficient basis for putting it to the jury. The judge would be justified in not leaving it to the jury if he reasonably considered that it to be remote from the real point of the case."

43. In Foster's case at [61], delivering the judgment of this court, in a five judge constitution, Sir Igor Judge P stated:

"The judge is not in error if he decides that a lesser alternative verdict should not be left to the jury if that verdict can properly be described in its legal and factual context as trivial, or insubstantial, or where any possible compromise verdict would not reflect the real issues in the case."

44. It is, on the authorities, the ultimate responsibility of the trial judge to leave an alternative verdict which is obviously raised by the evidence to the jury. While there is no universal rule about including a section 20 count in the indictment where there is an allegation of a section 18 offence, the decision of this court in Lahaye states that such a count should normally be included.
45. In the light of the way that this case developed and against a background in which section 20 is regarded as a count which should normally be an alternative to a section 18 count, it does not follow that, because of the factors relied on by Mr Donnelly in this case, the Recorder was entitled not to leave section 20 as an alternative. In Lahaye Sir Igor Judge P stated at [20]:

"... the authorities establish beyond doubt that a verdict under section 20 is normally available when section 18 is alleged. However we can see no advantage ... by the omission of a section 20 count, which in virtually every case will be available to the jury and which the judge at trial will almost inevitably have to address, because whether section 20 is alleged or not, it is the judge's duty to cut to the heart of the matter. If section 20 would be available in any event, we can see no reason why it should not be alleged at the outset. We see no disadvantage to the Crown. If their case is that the jury should convict of section 18, they will present their evidence and the arguments to sustain that conclusion. On the other hand, the jury may take a different, less severe view and should be trusted to reach the appropriate verdict according to the evidence."

Mr Abzarian also referred us to the post Banton decisions in R v Aziz Ali [2006] EWCA Crim 2906 and R v Hodson [2009] EWCA Crim 1590, in which this court held that a section 20 alternative should have been left. There are of course factual distinctions and Mr Donnelly rightly reminded us that this is a very fact sensitive exercise. But we have been assisted by the indications in those two cases that it is particularly important to leave the alternative verdict where the offence charged requires proof of a specific intent and the alternative offence does not - see R v Hodson at paragraph 11 and Aziz Ali at paragraph 7. The appellant's self-defence case meant that the question of her intent was in issue. We do not consider that a conviction for the section 20 offence could, in the context of all the circumstances of this case, be described as trivial or insubstantial in the sense referred to by Sir Igor Judge P in Foster's case. We accept Mr Abzarian's submission that, in view of the direction to the jury that they could convict the appellant on the basis of excessive self-defence, the failure to leave the alternative was of particular significance. In a case of excessive self-defence, an intention to cause grievous bodily harm may have been lacking. If, for example, the appellant had, as this appellant claimed she had, been defending herself against an attack on her by Tammy McCabe with a monkey wrench, and had managed to get hold of the monkey wrench, she may have inflicted the grievous bodily harm in the mêlée without the intent to do so.

We also note that the Recorder sentenced the appellant on the basis that the jury convicted her on the basis that she acted in excessive self-defence although Mr Donnelly is right to observe that the position at the subsequent sentencing hearing is not strictly relevant.

46. But for the other reasons we have given we consider that the Recorder erred in not leaving to the jury the possibility of convicting the appellant of an offence contrary to section 20. We consider that his failure to do so, in particular when considered together with ground 1, renders the appellant's conviction unsafe, because we are not able to be sure that the jury would not have convicted her of an offence contrary to section 20. Moreover, even though it is to be assumed that the jury would follow and apply the directions of law which they received from the Recorder about the requirement of intention, we cannot be sure that this was not a circumstance in which omitting directions about a possible lesser alternative verdict worked to the appellant's disadvantage. Such disadvantage might arise if the jury did not want her to get away with assaulting the complainant and of causing her grievous bodily harm.
47. Having so reached these conclusions on grounds 1 and 5, it is not necessary to deal with the other grounds at any length. With regard to ground 2, it is accepted by Mr Abzarian that he was not prevented from cross-examining Tammy McCabe about the inconsistencies between her evidence and her statement. His submission that the interventions blunted the impact of his cross-examination is one which we do not consider is made out. We only have a transcript of one of the interruptions and that provides no basis for this ground. In paragraph 36 of his advice Mr Abzarian suggested that a transcript of the first occasion was required to enable a proper assessment of this ground but one was not ordered by the single judge. As indicated at the outset of the hearing, enquiries by this court of the Criminal Appeal Office suggested that the shorthand writers who prepared the transcripts were unable to locate any other relevant passage on the tape.
48. However, taking Mr Abzarian's summary of the first occasion as accurate, we consider that the judge went no further than to suggest that, because the witness was adamant in her account and standpoint, counsel should move onto a new question. There is nothing in our view in this ground.
49. With regard to ground 3 it might have been better for the Recorder to tell the jury that, where a reference is made in cross-examination to what the person who has not been called or read as a witness is said to have said in a statement to the police, that is not evidence and should be ignored. Mr Abzarian accepts that the failure does not in itself render the conviction unsafe. It was not a matter which so troubled him that he invited the Recorder to make a direction either at the time or in his summing-up. In this case the judge made a timely intervention, and stopped this line of questioning. We have concluded that there is no merit in this ground.
50. We also consider that there is no merit in ground 4. The prosecution, on whom the burden of proof rested, was entitled to refer to the injuries of the victim being consistent with her account and in particular to make comparative comments on the injuries that the evidence showed that the victim and appellant sustained.
51. Ground 6 is not in our view supported by the transcript. The clerk did ask if the verdicts were unanimous. The clerk was given a positive answer to that question. Reliance on the fact that after the jury returned a guilty verdict in respect of the appellant they were not asked whether the verdict was unanimous, but after returning a not guilty verdict in respect of Aaron Vaughn they were asked whether the "verdict", not the "verdicts", were unanimous, does not in our view raise a realistic prospect that the verdict in respect of the appellant was not unanimous. The clerk did not put the questions to the jury in the normal way. He or she did not follow the Practice Direction and the jury should not have been asked in relation to the acquittal whether their verdict was unanimous or not. But those failings cannot, in our view, affect their clear answer to the question about the appellant.
52. We have concluded that the appeal against conviction succeeds on grounds 1 and 5. In those circumstances it is not necessary to consider the appeal against sentence. We will hear submissions as to where the Crown stands in relation to a retrial and anything that the appellant's counsel has to say.
53. MR DONNELLY: My Lord, I have limited instructions beyond that that I seek the order of this court for a retrial in this matter. The circumstances my Lord, you are familiar now with the factual matrix. There may, and I have to say, given certain difficulties first time round, which are known to all parties, there are difficulties with witnesses and there may be subsequent difficulties in progressing this matter.
54. LORD JUSTICE BEATSON: That is a matter for the Crown to consider. Do you have anything to say on that?
55. MR ABZARIAN: My Lord, I would object to a retrial being ordered. I accept that this is a very serious offence and, obviously, my client was given 4 years' imprisonment. However, she has served a significant amount of time in custody. She was remanded on the date of her conviction, 24th July 2013. I make it that she has served almost 11 months and is about five days short of that. That does not reach the obviously the 4 year, the halfway point of the 4 year sentence, but your Lordship will have seen the submissions made in relation to the appeal against sentence.
56. LORD JUSTICE BEATSON: You mean the caring responsibilities and the other submissions.
57. MR ABZARIAN: Also whether the injuries could properly be found to be serious in the context of the section 18.
58. LORD JUSTICE BEATSON: You are asking us to make a finding where you complain that there is no evidence that would help the court. So we have even less evidence than the court which you complain did not have enough evidence to make a finding.
59. MR ABZARIAN: I appreciate that. At the same --
60. LORD JUSTICE BEATSON: How can you take that anywhere?
61. MR ABZARIAN: I have filed all the medical information I have.
62. LORD JUSTICE BEATSON: I have read it carefully.
63. MR ABZARIAN: It is really incumbent on the Crown to prove that there is long-lasting injury ... it is not something really we can deal with it. But I will submit is when the judge himself says that the injuries may amount to greater harm, when he does not seem to be 100% sure. I appreciate we have not heard the appeal against sentence but it is a factor to consider. The other factor is that the offence itself dates to 15th September. So again we are coming up to almost 2 years. This a case --
64. LORD JUSTICE BEATSON: This would not be the oldest case in the...
65. MR ABZARIAN: Of course not. You have cases, for example, there is a drugs case: I was not intending to supply. This is a self-defence where things happened in a split second basis. The concern I also have, my learned friend seems to have similar concerns but Mr Warren, is he going to co-operate? Aaron Vaughan, where is he? Is he going to give evidence? In view of the fact that over time memories do fade. That is another factor.
66. LORD JUSTICE BEATSON: The real trouble is may be you did not expect to be in this position. You are making submissions asking us to speculate. If Aaron Vaughan has disappeared and could not be found then you should be in a position to tell this court that. You are not.
67. MR ABZARIAN: I have to say I did not anticipate that that issue would be raised. What I would say, as I said I have already accepted it is a very serious offence. My Lord, if a retrial is going to be ordered I would invite this court to grant the appellant bail. She was on bail throughout the --
68. SIR STEPHEN SILBER: She was bailed until conviction.
69. MR ABZARIAN: She was on bail and it was unconditional bail and there was no allegation that there had been any breach at all. Your Lordships will see from her record, and indeed the finding of the learned judge when sentencing her, that there has not been any relevant recent convictions, and my instructions are that every hearing where my client was required to attend she did attend.
70. LORD JUSTICE BEATSON: Thank you. Do you have anything to say about bail?
71. MR DONNELLY: With regard to bail, there is a clear indication from the facts that both complainant and applicant live in close proximity to each other. I know not the present whereabouts of the complainant. Certainly at the time of the original trial she was remanded in custody. I have not been given any update as to whether or not she is --
72. LORD JUSTICE BEATSON: Was she in custody during the trial?
73. MR DONNELLY: She was, yes.
74. LORD JUSTICE BEATSON: We will rise.
(Short Adjournment)
75. LORD JUSTICE BEATSON: We will order a retrial. We direct that any application for bail should be made to the Crown Court and then it can be properly documented and the Crown can be in a position to know what it needs to know about the complainant etc.
76. MR ABZARIAN: My Lord, two issues. I do not believe that it has been formally stated that the conviction ought to be quashed --
77. LORD JUSTICE BEATSON: I am about to do that. I am informing you of the result of the submissions that I have just heard. Why do you not sit down and listen. The order of the court is that we allow this appeal. We quash the conviction of the appellant, Georgina Vaughan, for causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act. We order that she is to be retried on that offence. We direct that a fresh indictment be served, and that she be arraigned on the fresh indictment within 2 months. We direct that she be held in custody and that any application for bail should be made to the Crown Court. We also make an order restricting reporting of the proceedings until after the conclusion of the retrial.
78. The venue for the retrial should be determined by the presiding judge of the South Eastern Circuit. Is there anything I have left out Mr Abzarian?
79. MR ABZARIAN: My Lord, may the appellant have a representation order for solicitors and junior counsel?
80. LORD JUSTICE BEATSON: My very helpful crib here tells me that applications for such an order should be made to the Highbury Corner Magistrates' Court at an address no doubt you will know well because of a change in the Crown Court legal aid Amendment No 4 regulations.
81. MR ABZARIAN: I am grateful.
82. LORD JUSTICE BEATSON: We are not able to give you that but you know how you can apply for it.
83. MR ABZARIAN: I will pass that on. I have nothing further to add my Lord. Thank you.
84. LORD JUSTICE BEATSON: We are grateful for both your assistance.