England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT
His Honour Judge Ralls QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/04/2017

Lord Thomas of Cwmgiedd, CJ:

Introduction

1. In late 2015 the appellant, aged 22, and his half-brother, Geoffrey, aged 27 were charged with causing grievous bodily harm on 18 September 2015 to the complainant with intent by throwing sulphuric acid at her face. Geoffrey pleaded guilty on 16 November 2015.
2. The appellant pleaded not guilty. He was convicted of the same offence on 12 April 2016 at Southampton Crown Court before HHJ Ralls QC and a jury. He was sentenced on 21 June 2016 to an extended sentence of 20 years comprising a custodial term of 15 years' imprisonment and an extension period of 5 years. His half-brother was sentenced to 9 years.
3. He appealed against conviction by leave of the Single Judge who also granted an extension of time of approximately one month; the sole ground of appeal was that the judge had wrongly admitted a text sent by his half-brother to his girlfriend. It was hearsay and, in the circumstances of the case, it was not admissible under the hearsay provisions of the Criminal Justice Act 2003 (CJA 2003). His application for leave to appeal sentence was referred to the Full Court by the Single Judge.
4. On 14 February 2017 we heard the appeal against conviction and dismissed the appeal for reasons to be given later. These are our reasons. We also heard the application for leave to appeal against sentence. We refused leave for reasons we gave then.

The factual background and the evidence

5. The appellant was a drug dealer from London. He had come to Southampton to sell Class A drugs including crack cocaine and heroin, staying at the house of Malcolm Bird. The appellant sold drugs to the value of about £1000 to £3000 a day. His half-brother worked for him, making deliveries of drugs on his behalf.
6. The complainant was a drug addict. She and her boyfriend, Matthew Wedgner, were regular customers of the appellant for heroin and cocaine.
7. The complainant's evidence was that she had been asked by two other drug users to introduce them to the appellant. She arranged for a deal to take place on 17 September 2015 with the appellant. The appellant sent his half-brother to do the deal. On 17 September 2015 the appellant's half-brother was robbed of drugs and cash to the value of approximately £2,000.
8. The appellant concluded that the complainant had been involved in the robbery. He sent her a threatening text message about half an hour later the same day which read:

"Bitch U dead over chump change."

His evidence was that he was angry and wanted her to know he thought she had set up the robbery. He intended her no harm. Her evidence was that she rang him on receipt of the message; after several telephone conversations, she thought things had calmed down, but she was still worried.

9. On the following day, 18 September 2015, in answer to a message on Whatsapp at 10.47 from his girlfriend asking if he was ok, the appellant's half-brother replied on Whatsapp at 10.48. "Hey babe na not really we got robbed last night"
10. At 11 am the appellant and his half-brother attempted to purchase from a Homebase store an industrial-strength product that is used for unblocking drains called One Shot. They were informed that the product was unavailable. They were directed to another store. They went to Plumbase and made a cash purchase of One Shot at 11:17. One Shot contains highly concentrated sulphuric acid for professional use. The appellant's evidence was that he had purchased the sulphuric acid to unblock a drain at Malcolm Bird's house.
11. They then went to a Harley Davidson garage, Milbrook, where the appellant's half-brother sent two messages to his girlfriend on Whatsapp

i) At 11:40: "Its cool though I know who robbed me and set it up".

ii) At 11:41 a picture of the box of One Shot sulphuric acid to his girlfriend with the caption: "This is the one face melter."

It was the second message which the appellant contended should not be admitted into evidence at his trial as it was hearsay and not admissible under the provisions of the CJA 2003. The appellant's evidence was that he did not know the message had been sent.

12. At 11:44 the appellant and his half-brother were seen on CCTV at the McDonalds across the street from the garage. The box containing One Shot sulphuric acid was visible on a table between them.
13. They then left McDonalds in a taxi at 12.18. Thereafter there was no independent evidence or CCTV evidence which showed the appellant's movements until 8.48pm. It was the appellant's case that he went to the house at which he was staying and dealt in drugs.
14. CCTV evidence showed the appellant and his half-brother at 8.48 pm with a group in Guildhall Square near the Turtle Bay Bar. The complainant and Mathew Wedgner encountered some of the group outside the Turtle Bay Bar, but the quality of the CCTV footage did not enable identification of the appellant and his half-brother as amongst those they encountered. The evidence of the complainant and Mathew Wedgner was that both the appellant and his half-brother were among those they encountered.
15. What is described as an altercation ensued. The complainant tried to get between Mathew Wedgner and the group of males, saying "let me explain". At this point the One Shot sulphuric acid, which had been poured into a small glass bottle, was thrown over her face by a man in a red cap; it was subsequently accepted that this man was the appellant's half-brother. She started screaming. Bystanders attempted to help by pouring water over her face.
16. Mathew Wedgner ran after the man, but returned when he heard the complainant screaming. He shouted "You London cunts".
17. The appellant's evidence was that he had left before this happened to go and sell drugs. His half-brother had then telephoned him and told him he needed a lift as he wanted to get away from the area. He called a taxi. He picked up his half-brother and another associate at Southampton Central station, putting his finger to his lips to indicate that his half-brother should remain silent in front of the taxi driver. They went to Southampton Parkway and boarded a train to Basingstoke.
18. The appellant was subsequently arrested at an address in Kent on 28 September 2015. He gave a no comment interview to police.
19. The appellant's half-brother, as we have stated, subsequently admitted throwing the sulphuric acid over the complainant.
20. As a result of the attack the complainant was left blind in one eye and partially sighted in the other. She required several skin grafts and was left with scarring to her face, damage to her neck and arms and damage to her eyelids which would not close properly and would probably cause repeated infection.

The prosecution case

21. The prosecution case was that the appellant and his half-brother had acted as part of a joint enterprise. The appellant had assisted and encouraged his half-brother from the outset in their joint plan to injure the complainant by throwing sulphuric acid over her face with the clear intention of causing her really serious harm. The appellant and his half-brother were both present at the time of the attack. The prosecution relied on a number of matters, apart from the disputed Whatsapp message - the closeness in time between the attack and the appellant's threat after the robbery; the fact that the appellant and his half-brother purchased the One Shot sulphuric acid together on the same day as the attack; the fact that the innocent explanation of needing to unblock a toilet where they were staying was not corroborated by Malcolm Bird; the evidence of the complainant and Matthew Wedgner that the appellant and his brother were both present at the time of the attack, and the evidence from bystanders that Matthew Wedgner had shouted "London cunts"; the discrepancy between the appellant's written Defence Statement and his evidence under cross-examination regarding his whereabouts at the time of the attack; the appellant's rapid departure from Southampton after the incident, together with his half-brother; his no-comment interviews.

The defence case

22. The defence case was that the appellant did not know what his half-brother was planning, and did not know about the "face melter" message. They had purchased the One Shot sulphuric acid for the purpose of unblocking a toilet where they were staying. They had purchased another product two days before and it had been ineffective. The text message which he had sent to the complainant the day before had been sent in anger, but he had no intention of harming her physically. He was not present during the attack, having gone to sell drugs in a park. He claimed that this was reflected by the failure of the independent witnesses to identify him.
23. After leaving the park the appellant went to the hotel because he had no credit on his telephone and he wanted to go to London. He booked a taxi and was contacted by his half-brother, who told him to come and get him as he needed to leave in a hurry. The first time he was aware of the attack was on the train to Basingstoke.
24. The appellant stated that he gave a no comment interview because he had been advised to do so by his solicitor, and because he did not want to get his brother into trouble.

The application to exclude the Whatsapp message

25. At trial the appellant sought to exclude the Whatsapp message describing One Shot as a "face melter" as inadmissible hearsay evidence.
26. This application was rejected during the course of the trial. Due to a misunderstanding on the part of the judge written reasons were provided only after the jury had reached their verdict. In the reasons the judge set out the two questions for his decision: (1) was the evidence hearsay? (2) was it relevant?
27. As to the first question, he concluded the message was not hearsay within the provisions of the CJA 2003. The prosecution had sought to rely on it to establish the state of mind of the appellant's half-brother when purchasing the One Shot sulphuric acid in circumstances where the appellant had said it had been bought it to unblock a drain. However:

"There is no statement that he intended to use it as a weapon against [the complainant]. Clearly, that is not hearsay for that reason and that reason alone. If one were to interpret this statement, if it is more than mere bravado, if one assumes that it is to be read literally, what does it mean, it seems to me the interpretation is … this is something that would melt someone's face. The prosecution do not seek to prove that by this evidence. The prosecution have scientific evidence to deal with the analysis of the product and clear evidence of what would happen if it is used. It does not anywhere state in that short comment that it was the intention of Jeffrey to use it to injure the complainant."

28. The judge then held in answer to the second question that the evidence was relevant as it undermined the appellant's claim that he and his half-brother shared an innocent purpose when purchasing the One Shot sulphuric acid. The jury might infer that the appellant's half-brother had always intended to use it as a weapon, and the surrounding facts of the case meant that a jury might conclude that the appellant shared that intention from the outset.
29. The judge went on to consider whether the evidence should be excluded under s.78 of the Police and Criminal Evidence Act 1984 or under his inherent jurisdiction, and concluded that it should not.
30. Finally the judge stated that even if he had concluded that the evidence was hearsay he would nevertheless have admitted it under section 114(1) (d) of the CJA 2003.

The contentions advanced on behalf of the appellant

31. It was contended on behalf of the appellant that the judge was wrong in his conclusion. The statement was admitted to prove a statement or representation of fact, namely the intention of the appellant's brother at the time of the purchase. It was therefore hearsay. It should not have been admitted under s.114 (d) as it was not permissible to use s.114 (d) to circumvent the calling of the maker of the statement, namely the appellant's half-brother, as a witness.

The approach to the hearsay provisions of the 2003 Act.

32. The real issue in the appeal was whether the message was hearsay. The CJA 2003 contains a very carefully constructed statutory code in respect of hearsay. It replaced the common law which, save for specific exceptions, was abolished. It is therefore important for a court when considering any application in respect of hearsay carefully to apply the statutory provisions without reference to the old law.
33. S.114 of the CJA 2003 makes clear that hearsay is excluded unless the provisions set out in the Act make the hearsay admissible.

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

34. S.115 then closely defines what hearsay is; any such evidence defined as hearsay is therefore excluded unless admissible under specific provisions of the CJA 2003. In determining whether a statement is hearsay, the definitions set out in s.115 of the terms "statement" and "matters stated" as used in s.114 (1) are of central importance:

(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

(a) to cause another person to believe the matter, or

(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

35. In R v Twist [2011] 2 Cr App R 17, Hughes LJ set out at paragraph 17 of the judgment the approach that a judge should follow (as the judge in this case did), whilst emphasising that the approach had to be fact sensitive:

i) identify what relevant fact (matter) it is sought to prove;

ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication);

iii) if yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.

36. On the facts of this appeal, there are three questions:

(1) What was the matter sought to be proved?

37. The prosecution sought to adduce the message as evidence in relation to the half-brother's intention shared with the appellant when purchasing the One Shot sulphuric acid. The prosecution sought to use the message to show that the product was not purchased with the intention of using it as a drain cleaner but was purchased with the intention of using it as a highly injurious substance to be thrown in the complainant's face. 

(2) Was the statement in the message a statement or representation of fact?

38. S. 115 (2) provides that a statement is a representation of fact or opinion. It is long established by numerous cases that a statement of a person's current intention can be a representation of fact. We have no doubt that the same case law applies to s. 115(2) of the CJA 2003. The specific question in this case is whether the message was a statement of the current intention of the appellant's half-brother which he shared with the appellant. In other words, was the message itself evidence of the matter sought to be proved, namely that the purchase was made with the intention to use the product to cause harm to the complainant or was the message merely a comment and therefore only evidence from which the matter sought to be proved, the purchase with that intention, could be inferred?
39.  This is a short point on which views can differ. On balance, we think the better view is that it was an implied representation of the intention, not simply a comment from which the intention could be inferred. It therefore fell within the definition in s. 115(2) as it was a statement of the matter intended to be proved.

(3) Was one of the purposes of the sender of the message to cause the recipient to believe it or act upon it?

40. However, even though the message fell within the definition in s.115(2) on the basis it was evidence of the intention to use it to cause harm and not merely a comment from which the intention could be inferred, we are firmly of the view that the statement or representation was not made to cause the girlfriend to believe the statement or to act on it as true.  Nothing in the message could possibly suggest that it was sent to cause the girl friend to believe One Shot would actually melt a face or to cause her to act on that basis or to believe that it was his intention so to use it or to act on that basis. Thus even if the terms of s.115(2) were satisfied in that it was a representation of fact, the message did not in any event therefore satisfy the provisions of s. 115(3) of the 2003 Act. It was not therefore hearsay.

Conclusion

41. As the message was not hearsay within the meaning of the CJA 2003, the message was admissible provided it was relevant and not subject to the discretionary exclusion. In our judgment the message was plainly relevant evidence and the judge was entirely correct in his decision not to exclude it under s.78 of the Police and Criminal Evidence Act 1984.
42. There was ample other evidence to support the conviction. It was entirely safe. It follows that the appeal had to be dismissed.