England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		10th April 2014

1. LORD JUSTICE ELIAS: On 23rd August 2013 in the Crown Court at Isleworth before His Honour Judge MacDowall, the appellant was convicted by a majority of 10 to 2 of assault occasioning actual bodily harm (count 1). On 21st October he was sentenced to a suspended sentence of 12 months suspended for 24 months, with a requirement that he carry out 200 hours unpaid work and a victim surcharge order was made also. He was acquitted on count 2, which was a count of possessing an offensive weapon. He now appeals against conviction by leave of the single judge.
2. The background is this. In the early hours of Sunday 26th August 2012 the appellant called at the home address of the complainant, Sarfraz Ahmed. There was an altercation between them. The claimant said that the appellant had pulled him by his shirt collar and then slapped him whilst shouting and swearing. He then punched him about six times in the face. He then produced a knife and struck him in the left side of the stomach causing an injury. The complainant described the knife as having a straight edge blade and it size was the length of his hand from wrist to fingertip.
3. His wife witnessed the incident. She followed her husband to the door and stood behind him. She saw the appellant put his hand in his trouser pocket. She did not see the item he took out but the next thing she heard was her husband shouting loudly: "The knife has injured me". Later she saw the scratch mark which had been made with a knife. There was some blood oozing from it and she washed it clean.
4. The knife was never recovered. The complainant went to A & E the next day where it was noted he had an abrasion to his stomach consistent with a slash mark. No treatment was necessary. The complainant suggested that the motive for the attack was that the appellant had approached him to borrow £5,000 or to obtain it from some friends, but he had refused. The appellant's account was wholly different. He ran a business hiring out cars. He said that on one occasion he lent a Mercedes to a member of Ahmed's extended family; it was involved in an accident and the insurance claim remained unresolved. As a result the appellant was liable for £30,000. He said that on the Saturday he spent the evening socialising with friends. He had consumed alcohol and he was tipsy. He spoke to the complainant Ahmed over the telephone when Ahmed told him to come to Ahmed's house. When the appellant turned up, Ahmed became aggressive. The appellant was angry and swore at him. Ahmed slapped him and the appellant grabbed him in retaliation. His friend, Azad, pulled him away and they left. He did not use a knife and any wounds suffered must have been self inflicted.
5. There was evidence from a medical expert which lent some support to that possibility. There were two linear superficial abrasion marks to the complainant's stomach. In view of their position and the single tear to the shirt there was, the expert thought, a "strong possibility" that the abrasions could have been self inflicted. Furthermore, Mr Ahmed had made no reference to the knife or the wound when first attended upon by the police, although he did later.
6. Evidence was given at the trial by Azan Hussain who spent the evening with the appellant. He said that he was aware there had been some problems with the car and an insurance claim. He was with the appellant when he spoke to the complainant over the telephone. They drove to the house in Greenford and the appellant approached the house alone. Hussain realised there was trouble between them, got out of the car and took the appellant away.
7. In the summing-up, when dealing with first count of assault occasioning actual bodily harm, the judge focused on the way the prosecution had advanced its case. He said this:

"... let us be clear here, you have heard allegations about slapping, pushing, or whatever but the Crown's case is based upon the accusation that the actual bodily harm were these, happily, minor injuries to the complainant's stomach, and that that was caused with this knife. If you thought and were sure that a knife was there but it wasn't taken for the purposes of violence but it was used to cause the injury, and the defendant was, shall we say, in the wrong, that again would determine things in the prosecution's favour. But it is a matter that the prosecution are not saying: oh, well, there's a plan B, if you like, that if you weren't sure about the knife you can convict of different kind of assault if you are sure that there was slapping around going on. That is not what the prosecution were are asking, and I am telling you again, as far as Count 1 is concerned, it is the question: was injury caused with a knife in the context that it was the defendant who was the aggressor?"

8. As to the second count, that was also firmly grounded on the allegation that the appellant had a knife. The acquittal on that count meant that the jury could not have been sure that he did.
9. The first ground of appeal is that these are inconsistent verdicts. How can the jury be sure there was an assault using a knife yet not be sure that the appellant had a knife at all? One hardly needs authority for the proposition that these are inconsistent verdicts which could not be explained in any logical way. It is true that not all logically inconsistent verdicts are necessarily unsafe. There may be some explanation for the inconsistency and it might be possible to infer why the jury reached the verdicts they did even though they were illogical: see the discussion in R v Dhillon [2010] EWCA Crim 1577, [2011] 2 Cr App R 10 paras 35 to 37. We would accept, however, that if the jury were obliged to assume that the first offence was committed with a knife or not committed at all, there is no sensible explanation for these verdicts and they would be inconsistent. The critical question is whether the jury were entitled to find, given the way in which the case was put, that the wound may have resulted from the appellant using some implement other than a sharp knife. This was plainly a possibility which crossed the jury's mind because they asked a question about it during retirement. The question and answer were as follows:

"The Statement of Offence, Count 1, does it have to refer to a knife? Could the assault/bodily harm be caused by some other implement?"

The judge in answering that question reminded them what an assault was, and then said this:

"If you took a view that there was something that the defendant had, and he is the one who was the aggressor, and he used that something to cause injury, then that would be legally sufficient for Count 1. Count 2 does depend upon saying, firstly: 'Was it a knife at all?' and, secondly: 'Was it brought to the scene for the purpose of causing injury/harm, as opposed to simply something that he happened to have on him and was using on impulse?'"

10. If the jury were indeed entitled to find that the offence was committed with something other than a knife, that would mean of course that there was no inconsistency with the verdicts at all - they would be entirely compatible. The jury were plainly satisfied that Mr Ahmed's evidence about a knife was not reliable; it had never been found and his wife did not claim to have seen it. But at the same time they must have been satisfied - or the majority must have been - that the injury was caused by the appellant and that he must have used an implement other than a knife.
11. Miss Stapleton, counsel for the appellant, submits that there was simply no proper evidence before the jury from which they could have so concluded. She says that the only evidence was from the victim and he was very clear about the fact that the injury was caused by a knife and he gave a detailed description of it. We reject that particular contention. It seems to us that there was evidence before the jury from which it could infer that some implement other than a knife could have been used. There was an injury to the stomach of Mr Ahmed. If the jury were sure that the injury was not self inflicted, then they must have assumed that it was inflicted by the only other person who could have done it, who was the appellant. If they were not sure that it was a knife, for example because it was never found, and because the wife had not seen it, then they must have inferred that the defendant caused this injury using some other implement. That was, it seems to us, a train of reasoning which in principle was open to the jury in the light of the evidence. We should add also there was the evidence from the expert who had indicated, in the context it is true of considering whether the wound may have been self inflicted, that it could have been inflicted by some other implement with a point, such as a small penknife or scissors or even a buckle or something of that nature. We therefore reject the submission that there was not a proper basis on which the jury, in the light of this direction, could have convicted this appellant. But that still leads to the question whether it was legitimate for the jury to be left with that possible route to verdict at all. That is a critical step in the submission that these are inconsistent verdicts.
12. Of course there is no doubt that in principle the offence of assault occasioning actual bodily harm could include wounding with any instrument. What is said is that in the context of this case, because of the way in which the prosecution put their case, the jury ought to have been told by the judge that they should only find that the defendant was guilty of assault under count 1 if they were sure that he had inflicted these wounds with a knife.
13. The appellant relies on the case of R v Dobson [2011] EWCA Crim 1856. In that case the defendant was convicted of unlawful and malicious wounding. He agreed that he punched the victim who may thereafter have been injured by hitting his head against a wall. The prosecution case throughout was that he had hit the victim with the head of the hammer, as the victim alleged. The jury had acquitted him of possessing an offensive weapon but convicted him of the unlawful and malicious wounding. He claimed that the verdicts were inconsistent given the way in which the case had been advanced.
14. The court approved the passage in Dhillon to the effect that in order to be an inconsistent verdict, there had to be both a logical inconsistency and no apparent explanation for the inconsistency. But it added that any explanation for the inconsistency had to fall within the parameters of the summing-up. The prosecution in that case had submitted that the jury could find that the assault had resulted from the punch alone but the judge in his summing-up had specifically told the jury that they could not convict on that basis. That of course is in substance the direction which the judge gave in this case too.
15. In the circumstances Jackson LJ, giving the judgment of the court, was satisfied that there was an inconsistency. He added that if the alternative formulation of the case was going to be left to the jury, it should have been considered in advance with counsel.
16. That case is not directly applicable here. First, the judge did identify as an alternative route to the guilty verdict the possibility that the injury might have been caused by something other than a knife, albeit only after the question had arisen from the jury. To that extent it was therefore within the parameters of the summing-up. Second, in Dobson the judge had specifically in his summing-up told the jury that they could not reach a guilty verdict on the basis of original scuffle. That was not a possibility open to them and it cannot be assumed they would act in breach of the direction and reach a verdict on that bases. Since there was no other possible basis for the guilty plea in Dobson, the conviction could not stand.
17. Again, that is not the position here. There never was any formal direction to the jury that they could not convict save if they were satisfied that the wound had been inflicted with a knife. Accordingly it is not the case that the jury stepped outside the parameters of the summing-up. This left open the possibility, as a result of the answer given to the jury's question, that they might find that the offence had been committed without the use of a knife. The real question, therefore, is whether it was legitimate for the judge to leave that option to the jury at all. As we have said, we accept there was some evidence from which that possibility could be inferred by the jury assuming that the issue was properly left to them.
18. It is well established that the judge is not bound to confine the summing-up to the same basis as that relied upon by the prosecution - see R v Japes [1994] Crim LR 605. But as that case also demonstrates that is only permissible provided the accused is not disadvantaged or prejudice by this course of action. If there is any uncertainty about that the jury should not be entitled to consider any fresh basis for conviction.
19. A similar situation to that occurring here arose in R v Mason [2012] EWCA Crim 2635. That too was a case where the fresh route to conviction resulted from a question posed by the jury after they had retired. Pitchford LJ, giving the judgment of the court, was satisfied that the factual basis for this amended basis had been fully explored in evidence, in the course of both examination and cross-examination and that although counsel had not been able to make closing submissions on this additional way the case was put because the point had arisen as a result of the jury's question, nonetheless the judge dealt with the only material point which counsel would have wanted to raise with respect to the new way of putting the case.In those particular circumstances the court was satisfied there had been no prejudice.
20. We have given anxious consideration to this question. In particular, we have considered whether or not there may have been prejudice in this case by the late formulation of this possible route to verdict. We have concluded that there might.
21. The appellant had not had an opportunity either to be examined or for his counsel to cross-examine Mr Ahmed on the basis that the injury may have been caused in some other way. For example, he might have wished to address the question whether he habitually carried a scissors or a penknife or any other instrument of that kind. It may have been that counsel would have wished to explore with Mr Ahmed whether there was some belt or something of that nature which could have caused a small wound, perhaps accidentally. In addition, of course it meant here that the counsel did not have the opportunity to address the jury on this issue, although as Mason shows that is not necessarily decisive.
22. In most cases of this kind the precise implement which causes a particular injury will not matter. The strong assumption will be that a person does not injure himself. The alleged attacker will in all likelihood have inflicted the wound; the issue is likely to be not what implement was used but what defences are available to the attacker if it is thought that he did carry out the attack.
23. This is an unusual case in the sense there was, as the expert indicated, a realistic possibility that the wound might have been self inflicted and, as we have said, that was reinforced by the fact that the complainant did not initially tell the police about this injury. It seems to us that in those circumstance in particular, it was important for the prosecution to spell out precisely on what basis they were alleging that the appellant had committed this offence so that all these possible ways in which the injury may have been caused could be fully explored.
24. The prosecution having nailed their colours to the knife, as it were, the judge ought not to have allowed the jury to consider whether they could be sure that the appellant had inflicted this injury using some other unspecified implement which had not been the subject of any deliberation at any stage during the course of trial.
25. For these reasons therefore we think these verdicts are indeed inconsistent. They were not inconsistent on the basis of the direction which the jury was given in response to its question. But on the basis that the jury ought not to have been given that answer, they were inconsistent with the only way in which the jury could fairly consider the case against this appellant. Accordingly we uphold the appeal and quash the conviction.
26. MISS WHITE: I am instructed to ask that the matter be sent back to the Crown Court for a retrial.
27. LORD JUSTICE ELIAS: I have rarely heard anything so ridiculous. A retrial in a case like this, where he has been acquitted of the knife. Where he has probably carried out- I do not know how much of this sentence he has carried out - do we know?
28. MISS STAPLETON: I am afraid I do not. He would have been in breach now if he had not completed a substantial amount of those 200 hours.
29. LORD JUSTICE ELIAS: There are some cases where it may be difficult to make the decision. This is not one of them.
30. MISS WHITE: So be it.