England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13th March 2018

LORD JUSTICE GROSS:

1. On 19^th May 2017, following a trial in the Central Criminal Court before His Honour Judge Marks QC (the Common Serjeant of London) and a jury, the appellant, Racey McDonald (now aged 30), was convicted of inflicting grievous bodily harm (count 1) by a majority of 10:2, and of having an offensive weapon (count 3) unanimously. He was acquitted of having an offensive weapon (count 2), and no evidence was offered against him on certain other counts.
2. On 16^th June 2017 he was sentenced by the trial judge as follows: on count 1, 42 months' imprisonment; and on count 3, six months' imprisonment to run consecutively. The total sentence was, therefore, four years' imprisonment. Various other orders were made which do not need repetition here.
3. The appellant appeals against conviction by leave of the single judge.
4. Although there has been some debate between counsel about the precise facts as they are set out in the Criminal Appeal Summary, nothing turns on the disagreements and so we take the facts from the Summary. They will in no sense prejudice our view of the matter.
5. On 22^nd November 2016, the complainant, David Roberts, went to the Cash Converters store in Sutton with his two brothers, Vincent Roberts and Dean Cable. The complainant left the store to have a cigarette. He became involved in a verbal argument with the appellant who was outside with his girlfriend and her young son. Eventually the appellant walked away and the complainant and his brothers headed home.
6. The complainant and his brothers saw the appellant again on Lodge Place. The appellant ran towards them and a physical altercation took place during the course of which the complainant produced a small knife. The appellant then stabbed the complainant in the armpit (count 1). The appellant made away from the scene on a bicycle and the police were called. The complainant told the police that the appellant had stabbed him with a large kitchen knife that he had been carrying (count 2).
7. The complainant, who was bleeding heavily, was taken to hospital. He was found to have a deep laceration to his right axilla which required emergency surgery to repair major blood vessels and nerves.
8. The following day the appellant's car (a Volkswagen Polo), which had been connected to the incident, was traced and found in the McDonald's restaurant car park at Gatwick Airport. At 11.15pm the appellant was arrested. When he was interviewed he said the following. He accepted that there had been an argument. He had gone to look for his girlfriend, having fetched his car because he was concerned that she and their son were in danger. He was attacked by the complainant's group who were all armed with knives. One of them dropped a knife which he (the appellant) picked up and used in self-defence. He had been surrounded by the group and the guy ran into it. He would not say where the knife was or whether that which was retrieved from his car was the knife. In short, his defence was a combination of accident and self-defence.
9. The appellant's car was searched. A carving knife with a 20.5cm long blade was found in the boot (count 3). The knife, which had no bloodstaining or fingerprints on it, was forensically examined, but the DNA results were of such a low level that no meaningful comparisons with DNA profiles could be made.
10. The prosecution case in relation to counts 1 and 2 was that at all material times the appellant was in possession of a large kitchen knife. During the altercation with the complainant, the appellant used this knife to inflict grievous bodily harm upon the complainant.
11. The prosecution case in relation to count 3 was that on 23^rd November 2016, the appellant was in possession of the knife found in the boot of his car at Gatwick Airport.
12. The defence case in relation to counts 1 and 2 was self-defence or accident. The appellant picked up the knife that the complainant had dropped and held it out in order to defend himself. The appellant was at no point in possession of a large kitchen knife.
13. The defence case in relation to count 3 was that the appellant had acquired the knife found in the boot of his car for carving meat at Christmas. It will be recollected that the knife was found on 23^rd November. It was not the same knife that had been used in the stabbing.
14. The issue for the jury in relation to count 1 was whether the appellant had acted in self-defence and/or whether the complainant was stabbed by accident. The issue for the jury in relation to count 2 was whether the appellant was in possession of a large kitchen knife on 22^nd November 2016. The issue for the jury in relation to count 3 was whether or not the appellant was in possession of the knife found in his car on 23^rd November 2016 for the purpose of carving meat at Christmas.
15. The judge summarised the critical issue on count 1 as follows:

"The critical and central issue in the case revolves around the issue of self-defence or accident. The [appellant's] case is in effect a mixture of the two. That is, that he picked the knife up that David Roberts had dropped and held it out with an outstretched arm to defend himself and that David Roberts then ran on to it, i.e. accident or self-defence. The law of self-defence is really just common sense. …

The [appellant's] case is really a mixture of accident and self-defence … He says he picked the knife up off the ground which David Roberts had been wielding, held it out at arm's length in effect to defend himself and that David Roberts then walked on to the knife or ran on to the knife…

If you think that this account is or may be true, he is entitled to be found not guilty. Because the prosecution must prove his guilt, it is for the prosecution to make you sure that he was not acting in self-defence and that this was non-accidental; it is not for him to establish the contrary. You must consider the matter of self-defence in the light of the situation that he honestly believed he faced. …"

16. The jury were directed, with the agreement of all concerned, to approach each count separately. The judge carefully prepared a set of written legal directions. Direction 2 reads as follows:

"2. You must consider each count separately. Your verdicts on each of the counts may be the same (be it guilty or not guilty); alternatively, your verdicts may be different. You will of course appreciate in this regard that each count represents separate alleged criminality and it follows that the evidence in relation to each count is different, hence why separate consideration of each is required."

17. At page 8 of his summing-up the judge gave directions on both count 2 and count 3. He reminded the jury that count 2 referred to the incident on 22^nd November. The issue was in relation to the large knife which was used to stab the complainant. The question was to whom it belonged. As the judge put it:

"If you think it belonged to David Roberts or one of his brothers and the [appellant] picked it up off the ground so as lawfully to defend himself – [or] that may be the position – he would not be guilty of count 2, since in these circumstances he would have had a reasonable excuse for being in possession of it and using it in the manner that he did. Conversely, if you are sure that it was the [appellant's] knife and that he had armed himself with it in the period prior to the confrontation and intended to cause injury, should the need for it arise, then on the facts of this case he would be guilty of this offence."

18. The judge next turned to count 3. The judge emphasised that this was "a completely separate allegation" relating to the recovery of the knife from the appellant's car on 23^rd November. The judge recounted the rival arguments, including the appellant's explanation that he had acquired this knife and left it in the car with a view to cutting chicken or duck at Christmas. This was a different knife from that involved in the stabbing. The prosecution case was that it was the same knife. The judge gave a careful direction as to how the jury should approach count 3.
19. Pausing there, we observe that, at least with hindsight, the need for count 2 is not apparent. It adds nothing to the allegations on count 1. Secondly, although the judge posed two alternatives at page 8 of the summing-up with regard to count 2, the jury was not bound to accept either factual alternative.
20. The appellant, as we have recounted, was convicted on counts 1 and 3 and acquitted on count 2. When he came to pass sentence, the judge expressed the matter this way:

"These charges all arose out of an incident which occurred in the early evening of 22^nd November 2016 in Sutton. Outside the Cash Converters shop you got into an argument with a man by the name of David Roberts. The argument appears to have been utterly trivial … Where exactly the fault lay for this argument is difficult to discern and it may be that there was an element of fault on both sides.

You walked off with your partner, Leah Jones, and your young stepson but you continued looking back at David Roberts who was with his two brothers.

You went back to your vehicle but then ended up returning to the High Street and then on to a side road. On that side road (Lodge Place) you are seen on the CCTV footage running down the road and then confronting the three Roberts brothers. Matters quickly came to blows between you and David Roberts and you ended up stabling him.

You rode away on a bike that you took from a young boy ….

The police had become aware of the registration plate of your vehicle and you were stopped and arrested the following evening. Hidden inside the boot of your car at this time was a substantial kitchen knife (that being the subject matter of count 3).

David Roberts himself was in possession of a knife at this time and he accepted in evidence that at the beginning of the fighting in Lodge Place he had produced that knife. He explained that he had it in his possession because of a recent burglary at his home and the fact that his brother had been threatened a few days earlier.

Your case was that you were not yourself in possession of a knife at all. You asserted that David Roberts dropped his knife which you then picked up off the floor and wielded in front of him in order to ward him off, and that he ran on to the knife which you were holding with an outstretched arm. Accordingly, you claimed that his was a mixture of accident and self-defence.

The case for the prosecution however was that, although David Roberts had produced a knife, you had your own knife and that it was that knife that was used to cause the injury; and moreover that it was that same knife that was recovered by the police from your vehicle the following evening.

…

I am entirely sure, to the criminal standard of proof, that the knife used to inflict the injury was yours and was the same knife that was recovered from your vehicle (cf. count 3). In particular I found the evidence of Aaron Lintott extremely compelling. He was a 14 year old boy who was an independent witness to these events and he gave a vivid description of your removing a large knife from the groin area of your trousers. I have no doubt that he was a reliable and honest witness."

The judge then recounted further evidence as to the knife and as to it being the same knife that was found the following day. He continued as follows:

"In my judgment your acquittal on count 2 is not inconsistent with the verdict of the jury on count 1, nor with this interpretation of the facts.

On count 2 you were specifically indicted with having an offensive weapon in Lodge Place. In paragraph 26 of my legal directions I directed the jury: 'the carrying of an offensive weapon as a general precaution, to use in case of attack, is not permissible; it may though be a reasonable excuse that the carrier is in anticipation of imminent attack and is carrying it to defend himself if that should arise'.

Given the trouble there had been between you and David Roberts a few minutes earlier, in my judgment the verdict of the jury on count 2 is consistent with their conclusion that you had returned to the vehicle and armed yourself because you were in fear of further imminent trouble from David Roberts and his brothers, and had armed yourself in anticipation of such trouble at a time when you had gone out to look for your partner and her son from whom you had become separated and for whose safety you were concerned.

Such an interpretation of the verdicts of the jury is not inconsistent with their conclusion on count 1 on the basis that you did then use the knife unlawfully but, given that only one wound was involved, you did so without an intention to cause really serious bodily harm.

Accordingly, I intend to sentence you on that basis."

Later in his sentencing observations, the judge added that he also accepted that the complainant and his brothers had been far from blameless in the incident. As the judge had observed, the complainant was in possession of a knife and it would have been open to him and his brothers simply to walk away. They did not do so.

21. We turn to the rival cases. Essentially, the point raised on behalf of the appellant is that this was a case of inconsistent verdicts. As put in his written submissions and as succinctly developed in his oral argument today by Mr Arsenio, the appellant's acquittal on count 2 could only mean that the jury believed his account: namely, that the knife was not his knife, but a knife belonging to David Roberts which he picked up at the scene. Even if the jury were of the opinion that this was a knife that the appellant had taken from his car and at the moment he entered Lodge Place he was justified in having it because there was a risk of an imminent attack, when he used it his possession of the knife would have lost all legitimacy, unless he had been acting in self-defence. Mr Arsenio thus focuses on what was (as he put it) the temporal coincidence between the events comprising count 1 and count 2. Accordingly, Mr Arsenio submitted that the verdicts of guilty on the alternative count of causing grievous bodily harm (count 1) and not guilty on the possession of an offensive weapon (count 2) were inconsistent with one another. Mr Arsenio argues that the jury were clearly confused and the result was that the conviction on count 1 was unsafe.
22. For the Crown, Miss Felix submitted that the test was that to be found in R v Fanning [2016] EWCA Crim 550; [2016] 1 WLR 4175. We shall return to that authority in a moment. It was clear by their verdict that the jury were satisfied that the appellant did not act in self-defence and that the injury was not the result of any accident. She canvassed a number of possible factual scenarios for the jury's verdict. It did not follow from the acquittal on count 2 that the verdict on count 1 was unsafe. It was entirely in accordance with the judge's direction and also the fact that the judge had specifically directed the jury to consider each count separately. It was, she submitted, possible to postulate a legitimate chain of reasoning which explained the jury's verdicts.

Discussion

The Law

23. The law in this area has recently been authoritatively clarified in Fanning after an extensive consideration of earlier case law. The test, based on an unreported judgment of Devlin J (as he then was) in R v Stone (13^th December 1954), is helpfully summarised in the headnote in Fanning:

"Where inconsistency between verdicts was advanced as a ground of appeal against conviction, the burden was upon the defendant to satisfy the court that the two verdicts could not stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion; that if the jury could not have reasonably have come to the conclusion the convictions could not stand; that the test did not require elaboration and the verdicts of the jury were not to be treated as inconsistent simply because the jury had been sure about some parts of the evidence given by a witness but unable to be sure to the requisite standard about others; and that, accordingly, since in each case the defendant had failed to discharge the burden of proving that the verdicts of conviction on some counts and acquittal on others were logically inconsistent, the convictions were not unsafe."

As the court made clear in Fanning, elaboration is unnecessary and to be avoided.

24. Two further matters emerge clearly from Fanning. First, the starting point is the constitutional role of the jury and the need for an appellant to persuade this court to set aside a verdict as unsafe. As the court observed (Fanning at [16]), the merit of the test established by Devlin J was that it recognised the constitutional position of the jury, whilst providing the necessary safeguard for a defendant. Secondly, before concluding that the verdicts are so inconsistent as to demand interference by an appellate court (Fanning at [8]), it may be helpful to consider whether the jury simply followed the judge's direction to consider separate counts separately, or took a "merciful" or " ameliorative" view of the facts of one count: see the passage from a judgment of the High Court of Australia in Mackenzie v R (1996) 190 CLR 348 at pages 366 to 368, cited with approval in Fanning at [11] and elsewhere.

The application of the law to the facts

25. At the outset count 3 can be put to one side. It is a wholly separate count and does not give rise to any concerns as to inconsistency. There can be no doubt that the conviction on count 3 was safe. Count 3 does not, however, provide assistance in resolving the issue which arises on this appeal as to the suggested inconsistency between the verdicts on counts 1 and 2.
26. The real issue on this appeal relates to the guilty verdict on count 1 and the acquittal on count 2. The short point is that made by the single judge when giving leave: namely, at the moment of stabbing the guilty verdict on count 1 must also entail guilt on count 2. The fear of imminent further trouble, which may have provided the appellant with a defence on count 2 up until then, must by the jury's verdict on count 1 have been superseded.
27. For our part, while following the premise of the argument advanced by Mr Arsenio and the considerations of strict logic, which prompted the giving of leave, we are wholly unable to go further and to conclude that the appellant's conviction on count 1 was unsafe. Bluntly expressed, any inconsistency between the jury's verdicts on counts 1 and 2, if such there be, only assists the appellant if it points to the conviction on count 1 being unsafe, rather than an error in the appellant's favour on count 2. In our judgment, the insuperable difficulty facing the appellant is that, however analysed, there is no such pointer to jury confusion as to count 1, or the unsafety of the conviction on count 1.
28. First, and without opposition at the hearing, the judge gave the jury the direction that separate counts were to be considered separately. The jury plainly followed that direction. Against this background, and even if not itself decisive, it is difficult to conclude that the jury's verdicts were inconsistent within the meaning of Fanning so as to require this court to interfere.
29. Secondly, the judge directed the jury very clearly on count 1 and the key issue or issues relating to it. We have set out the relevant passage. The jury carefully considered count 1. They acquitted the appellant on the section 18 offence, before convicting him on the alternative section 20 offence. There is nothing whatever to suggest, let alone establish, that the jury's verdict on count 1 was unsafe, taken by itself. In particular, there is simply no plausible basis for suggesting that the jury's rejection of the combination of accident and self-defence, which comprised the appellant's defence, was the result of confusion or was otherwise unsafe.
30. Thirdly, having once rejected accident and self-defence, the only realistic factual routes to the jury's verdict, whatever their errors as to count 2, in no way impact on the safety of the conviction on count 1. Thus:

(1) The appellant was not in possession of a knife until he picked it up from the road, having been dropped by the complainant. He then used it to inflict serious injury, without the intention for section 18. The factual matrix is in part consistent with the defence case of having picked up the knife.

(2) Alternatively, in accordance with the judge's factual basis for sentence, the appellant did arm himself before he entered Lodge Place. He did so because he anticipated imminent attack and was carrying it to defend himself. Once at the scene, he stabbed the complainant in circumstances which negated accident and self-defence, but without the intent for the section 18 offence. That such an interpretation of the facts was not advanced by either party is neither here nor there. It can readily be seen why this version was not attractive to either the complainant or the appellant.

Importantly, neither of these scenarios casts any doubt whatever on the safety of the appellant's conviction on count 1.

31. Fourthly, for our part, such difficulty as has arisen was either attributable to the jury taking the view that the section 20 offence encompassed the fleeting moment when possession of the knife was unlawful, or that the jury took a merciful or ameliorative view of count 2, having once convicted the appellant on count 1. On either footing, and whatever the error on count 2 in the appellant's favour, the safety of the conviction on count 1 is not imperilled. To hold otherwise would involve the tail of count 2 wagging the dog of count 1.
32. In the circumstances, we are not persuaded that the verdicts of the jury on counts 1 and 2 were inconsistent within the meaning of Fanning, such as to demand interference by this court. Accordingly, this appeal is dismissed.
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