England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NOTTINGHAM CROWN COURT
Mr Recorder Swain
T20137528

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/01/2016

Lord Justice Treacy :

1. This is an appeal against conviction. It is concerned with the trial judge's refusal of permission to the appellant to adduce evidence of the bad character of the complainant pursuant to section 100 of the Criminal Justice Act 2003.
2. On 13 May 2014 in the Crown Court at Nottingham the appellant was convicted of wounding with intent. He was subsequently sentenced to 10 years imprisonment. Two co-accused Shekhan and Rauf were also convicted and sentenced to 10 years.
3. The case was concerned with a fight which took place on 24 August 2013 shortly after midday in which the complainant Dwayne Richardson received five stab wounds in a confrontation with a number of other young men. The stab wounds were to the chest and back, and Richardson lost a lot of blood.
4. The Crown's case was that this appellant and his co-accused had acted together in a joint enterprise to attack Richardson and that one of them had used a knife. Richardson's evidence was that he was on his way to see a friend when he saw the appellant whom he thought he recognised. They spoke briefly and then went up a side street to talk further. The appellant was with three others.
5. Once up the side street he was attacked by four people all of whom were punching him. He had not realised that he had been stabbed until he got away and went to a friend's house. He maintained that the appellant had struck the first blow and that his friends had been involved in the attack.
6. He subsequently picked out the appellant and his two co-accused at an ID procedure. When cross-examined he denied having a knife and said that he did not remember any other group coming from a nearby restaurant. At no stage had he seen a knife. There was CCTV evidence but the actual fight was not caught on CCTV. It did however show the victim being ushered off the main road into a side street by the appellant followed by the co-accused. There was telephone evidence which was consistent with the appellant and his co-accused travelling together away from the scene.
7. When the appellant was arrested and interviewed he said that he had been punched by Richardson, lost consciousness momentarily and then fled the scene after he was further threatened by Richardson. He denied any involvement in the attack on Richardson.
8. His defence therefore was that Richardson had been wounded by others and that he formed no part of any joint enterprise since he had not participated in any violent conduct. He had not seen a knife at any stage. His defence statement said that he believed that a knife must have been produced in the melee in which he was not involved but that he had not seen the knife or who produced it. However he believed that it must have been Richardson.
9. The judge directed the jury that the Crown would have to establish in the case of each defendant that he had participated in the stabbing with the requisite intent. That could be done by proving that an individual defendant used the knife, but the judge pointed out that there was no evidence specifically identifying any of the accused as having wielded the knife.
10. He went on to say that an individual who took part in the incident realising that a co-accused had a knife and might use it, or who was aware that another was using a knife in the attack and continued to take part, would be guilty by reason of joint enterprise. As we have said, he directed the jury as to the necessary intent for the section 18 offence. There is no complaint about the way in which the judge directed the jury.
11. Prior to the calling of evidence the appellant sought to adduce the evidence of Richardson's bad character. He had between 2002 and 2009 been convicted on four occasions of offences involving the carrying of knives or bladed weapons. It was argued that those convictions were admissible under section 100. They proved that Richardson had a propensity to carry knives.
12. Admission of the convictions would increase the likelihood that the jury would conclude that Richardson had produced the knife he was ultimately stabbed with. If the jury concluded that Richardson might have produced the knife and had been dispossessed during a short struggle it would have substantially weakened the Crown's case on joint enterprise and as to specific intent.
13. Moreover it would have supported the defence case that the complainant was the aggressor who had attacked first, and would have substantially weakened the complainant's credibility. The judge ruled against the submission both at the outset of the case and on its renewal after the appellant had given evidence. He had indicated that he would review the initial decision after evidence had been given.
14. Section 100 provides:

"(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –

(a) it is important explanatory evidence,

(b) it has substantial probative value in relation to a matter which –

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole, or

(c) all parties to the proceedings agree to the evidence being admissible.

(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if –

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial. "

15. The grounds of appeal submit that the judge was wrong to reject the submission and in essence repeat the points made to the judge summarised above. Mr Nashashibi in a clear and incisive argument for which we were grateful, submitted that anything which might raise a doubt as to proof of an element of the offence must be a matter of substantial importance. Simply to focus on the case advanced by the appellant would be to ignore the fact that irrespective of whether the appellant's account was or might be correct, the Crown had to prove participation, foresight and intent. He also suggested that if it had been the appellant who had the previous convictions, they would have been admitted in evidence.
16. The Crown resists the appeal urging that the judge's ruling was correct. It was submitted that on proper analysis the complainant's convictions did not go to a matter in issue in the case that was of substantial importance in the context of the case as a whole, and in any event they did not have substantial probative value.
17. In this context it was important to recognise that the case advanced by this appellant in common with his two co-accused, all of whom gave evidence, was that:

i) Richardson was the aggressor.

ii) In the side street the first blow was struck by Richardson who hit the appellant with his fist.

iii) A large group of men emerged from the nearby restaurant.

iv) That group was responsible for the attack on Richardson.

v) The appellant and his co-accused had played no part in the attack.

vi) Richardson must have been stabbed by one of the men from the restaurant rather than by the appellant or his companions.

18. The Crown emphasised that the appellant and his co-accused had all denied seeing a knife at any stage and all denied being involved in any attack on Richardson.
19. It seems to us that the resolution of this matter depends on section 100(1)(b). We do not consider that the case falls within section 100(1)(a) (important explanatory evidence) as is demonstrated by the definition contained in section 100(2). The evidence must have substantial probative value in relation to a matter which is a matter in issue in the proceedings and of substantial importance in the context of the case as a whole.
20. This appellant's case was that he had been the victim of the first blow struck and that thereafter he had nothing to do with what happened. His case in common with that of his co-accused was that none of his group had been involved at all. The stab wounds were inflicted on Richardson by a member of a separate group who had emerged from the restaurant at the start of the confrontation. The essence therefore of the defence case was of a denial of involvement. It was not, for example, a case of admission of involvement with the knife but raising self defence, and was not in the context of a closed group of people.
21. We remind ourselves of the observation of Pitchford LJ in Miller [2010] 2 Cr App R 19 that the purpose of the leave requirement in section 100 is to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration on the real issues in the case. In Braithwaite [2010] 2 Cr App R 18 Hughes LJ commented that section 100 requires judgment on the part of the judge, and assessment which is highly fact sensitive in each case.
22. It seems to us that the question whether Richardson was the original possessor of the knife was not a matter of substantial importance in the case as a whole. The appellant's own evidence was that he had not seen a knife at any stage and when he had been struck by Richardson he had been struck by a fist after which he had no part in the action. There was no evidence capable of supporting the assertion that Richardson had produced the knife; all there was was a bare speculation by this appellant.
23. Whilst of course it would be necessary for the Crown to prove the elements of the charge even if the appellant's account was not accepted by the jury, the non-acceptance by the jury of the appellant's account would go some way towards supporting the prosecution's case. In the context of this case, however, Richardson's previous convictions were in our judgment remote from the true issues which were put before the jury for its decision. On the element of intention to cause grievous bodily harm, Richardson's convictions could shed scant light when there was no evidence that any other person involved had suffered knife injury and where he had received no less than five stab wounds to front and back. Those facts speak for themselves on the issue of intent.
24. The assertion that had the jury known of Richardson's previous convictions they might have concluded that on this occasion he had a knife and that in a fast moving incident a co-accused had disarmed Richardson and stabbed him unknown to the appellant seems to us to be a speculation devoid of any supportive basis in the evidence. That, no doubt, is why all of the defendants made common cause in eschewing any such defence, and, instead, laid the blame for what happened upon a wholly separate group of individuals. In that situation, the clear implication was that the knife came from within that other group and was not the result of a disarming of Richardson.
25. We do not consider that the convictions, the last of which was in 2009, would in the context of this case and the way the defence was run, have been of substantial importance on any issue of credibility. Nor do we think that the argument that had the appellant had those convictions on his record they would have been admitted in evidence has any relevance. In such a case the position would have been different. Assuming the appellant's case was a denial of stabbing, his previous convictions would be highly relevant to prove the identity of a stabber where there was evidence to show that Richardson had sustained a series of deliberately inflicted stab wounds. The two situations are simply not comparable.
26. The judge's conclusion was that what was of relevance was who was involved at the time the complainant was stabbed rather than whether the knife was originally in the possession of the complainant and then came to be in the possession of others. He did not consider that the previous convictions had substantial probative value in relation to the real issue in the case. We accept his analysis, and in our judgment the admission of the evidence of previous convictions could have distracted the jury from the real issues in the case.
27. The matter in issue was whether the jury could be sure that the appellant was jointly responsible for a stabbing by his group with the requisite intention or whether another entirely separate group was responsible. The issue was not who initially produced the knife. That question in the light of the way in which the defence was put amounted to no more than speculation which the jury would not have been entitled to consider: see R v Mount [2010] EWCA Crim 2974 where the court emphasised that section 100 provides that the bad character of a non-defendant is admissible "if and only if" it can be brought within the section whose purpose was specifically to prevent bad character being deployed simply to generate speculation.
28. We think in any event that even if the evidence was wrongly excluded, (which we do not accept), its exclusion would not have rendered the conviction unsafe. There was a strong case available to the Crown. Despite claiming to have been punched hard enough to make him black out the appellant suffered no visible injury. Far from reporting an assault upon himself, he seems to have taken steps to move away from the area for a significant period of time afterwards. He was captured on CCTV running from the scene of the attack and appeared to be examining his hands for something.
29. When the police attempted to arrest him he escaped from a bus and remained at large for some time. His co-accused destroyed their phones and sim cards before attending the police station. Examination of CCTV footage did not show the large group of males in the area outside the restaurant as claimed by the appellant and his co-accused to be the true perpetrators of the stab injuries to Richardson. Five stab wounds provides ample evidence of intent.
30. For these reasons this appeal against conviction is dismissed.