CO/4836/2002 
Neutral Citation Number: [2003] EWHC 620 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 11 February 2003
 B E F O R E:

MR JUSTICE MOSES 

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GREGOR FORDE
(APPELLANT)

-v- 

MAUREEN QUINN
(RESPONDENT) 
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MR H SOUTHEY (instructed by Deighton Guedalla, London, N1 8DU) appeared on behalf of the APPELLANT
MR P PATHAK (instructed by Litigation Department, London Underground, London, SW1H 0BD) appeared on behalf of the RESPONDENT
Tuesday, 11 February 2002

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J U D G M E N T 
1.	MR JUSTICE MOSES:  This is an appeal by way of case stated from a decision of the Crown Court sitting at Middlesex.  That court heard the appeal on 27 May 2002 from a decision of the Horseferry Road Magistrates' Court.  The subject matter of the appeal was an alleged assault by the appellant, Mr Forde, on an employee of London Transport working at Green Park underground station.  The assault was alleged to have occurred on 4 July 2001.  
2.	This appeal was launched in pursuance of an earlier legal argument that the evidence of the main complainant, Maureen Quinn, should be excluded, pursuant to section 78 of the Police and Criminal Evidence Act 1984.  The basis upon which that application was made before the Crown Court was this: there was apparently an independent witness, Mr Franklin Johnson, who was himself an employee of London Transport, working in the underground, although at a different station.  Although the fact that he had direct evidence to give would have been apparent on any reasonable enquiry, the prosecution had failed to investigate his existence until some considerable time after the incident, when his name was disclosed to the defendant.  It was not disclosed until shortly before the hearing before the Magistrates' Court in February 2002.  A statement ought to have been taken from him much earlier.  Before the Magistrates' Court no application to stay on the grounds of a failure of the prosecution to identify the witness, obtain a statement from him and furnish that statement to the defence was made.  Rather, in the absence of any application for a stay, as I have said, a submission was made in relation to the evidence of the complaint pursuant to section 78.  The Crown Court rejected that submission.  
3.	Before me, Mr Southey in, as usual, his excellent, cogent and brief submissions has not pursued the argument that the Crown Court ought to have excluded the evidence of the complainant.  What the Crown Court did was give the assurance that, to the extent that the evidence of Mr Johnson was hampered by a failure by the prosecution to take a statement earlier, it would be taken into account in what they described as the trial process.  In other words, any defects in the evidence, they were saying, would not be held against the defendant.  
4.	This appeal has now been advanced on the basis that the findings of fact did not support the conclusion of the Crown Court.  The court found the following facts.  On 4 July at Green Park underground station the appellant, a passenger, had become angry with the respondent, Miss Quinn, a member of the underground staff, as he felt she had been dismissive in failing to assist him.  The appellant had followed the respondent to the mess room.  The appellant did not want the respondent to get away and took steps to stop her getting away.  He was behaving aggressively.  The court went on at 15(d): 
"(d)  The Court found Ms Quinn to be a convincing and internally consistent witness and found that the Appellant had pushed his chest against her shoulder barging her into the doorframe.  The Court was not certain that the Appellant had done this deliberately, but was sure that the Appellant had behaved recklessly.  
"(e)  The Court accepted that Mr Johnson was an honest witness and accepted that he had seen the Appellant place his foot in the doorframe but found that this had happened shortly after the initial incident in which the Respondent was assaulted and that it was unlikely Mr Johnson had seen that incident."  
The court therefore found the appellant guilty of common assault and he was sentenced to be conditionally discharged for 12 months.  
5.	Mr Southey contends that this rationalisation outlined above of the evidence of Mr Johnson, found to be a honest witness, was not open to the court.  The court had recorded that Miss Quinn said that the appellant had assaulted her as she opened the mess room door: in that, as she held the doorhandle of the mess room, the appellant had shouldered the door and, with his right shoulder and chest, shouldered her into the doorframe.  She stated that she had never taken her hand from the doorhandle, that she was always between the appellant and the door, and it was totally untrue that the appellant had put his foot in the door.  Mr Johnson stated that, when he arrived on the scene, the mess room door was closed.  He stated that he saw the respondent open the mess room door and put the mess room door between herself and the appellant.  He said she was trying to close the door and that the appellant put his foot in the door.  He further stated that he did not see the appellant and the respondent come into physical contact with each other.  
6.	Accordingly, Mr Southey submits that it was not open to the court to find that what Mr Johnson had seen had took place after the initial incident: in other words, after Miss Quinn had been assaulted.  It is true that the only assault upon which the Crown could rely was the assault described by Miss Quinn as she opened the mess room door.  There was no other occasion on which she opened the mess room door, in the course of which the appellant would have had the opportunity to place his foot in the doorframe.  Accordingly, he submits, it was not open to the court to find that what Mr Johnson had seen was something which had happened shortly after the original and only assault.  What he saw must have been what had occurred at the time of the assault because that was the occasion when Miss Quinn opened the mess room door.  He saw no assault.  He was accepted to be a honest witness and, accordingly therefore, having regard to the burden of the standard of proof, the court should not have concluded that it was sure that the assault had taken place.  
7.	I accept that there will always be difficulties in rationalising the evidence of two honest witnesses in relation to an incident that was unexpected and that must have taken place over a very short space of time.  This is a problem that many fact-finding bodies, particularly in crime, are faced with: honest witnesses apparently describing the same incident, but seeing different things.  In my view, the important question for the court was whether, in the light of all the evidence, that of Mr Johnson and the appellant himself, Mr Forde, they were sure that Miss Quinn was telling the truth.  If they were sure that she was telling the truth, then that was the evidence upon which it was open to them to conclude that an assault took place.  If the court was sure that she was telling the truth, it was entitled to convict the defendant.  It was sure that she was telling the truth, despite the evidence of the defendant and Mr Johnson.  
8.	Nevertheless, they had to explain the evidence of Mr Johnson and it is plain that they took the view that he had missed part of the incident in which she was assaulted.  True it is that they went on, in my view, not adequately to explain how he had come to miss it.  It cannot have been that the incident he saw happened shortly after.  But, even though I accept Mr Southey's submission that 15(e) does not amount to a clear and adequate rationalisation of the two witnesses, nevertheless, bearing in mind that they did accept the evidence of Miss Quinn despite the evidence of Mr Johnson, that, in my view, does not vitiate their conclusion.  It is plain that the judge and the justices were finding that they believed Miss Quinn, despite the evidence of Mr Johnson.  
9.	No question of delay in obtaining a statement from him appears to have arisen.  It does not appear that Mr Johnson said that he was hampered in any way by that delay.  Nor does the court comment upon any possible difficulty he was labouring under because of the delay to take his statement.  
10.	This court is therefore faced with findings of fact open to criticism in one respect, but clear in other respects: namely, that the evidence of the assault depended upon the credibility and reliability of Miss Quinn, both of which were satisfied to the necessary standard of proof.  In those circumstances, whilst I accept the criticisms in relation to 15(e) advanced by Mr Southey, I do not think that the verdict is vitiated.  
11.	The further point he raised was the reference to the court saying it was unlikely Mr Johnson had seen that incident.  I do not find from that finding any failure to have regard to the criminal burden or, more importantly, the standard of proof.  Of course, in relation to any particular witness there will be degrees of probability as well as certainty, and it is a common fallacy, advanced from time to time in the Criminal Court, that because a witness is not sure, then the jury could not act upon that witness.  Indeed, the finding, that it was unlikely that Mr Johnson had seen that incident, is at the heart of the court's conclusions.  To rationalise the evidence of Miss Quinn and Mr Johnson and to be compelled to the conclusion that Miss Quinn was right it must, necessarily, follow that Mr Johnson did not see the incident.  That, in my view, is the explanation for the conclusion they reached.  
12.	For those reasons I do not answer the questions in relation to the application for a stay, since they have not been pursued by Mr Southey.  In relation to 16(b) I answer the question by answering that there was no such unfairness as could not be remedied by a re-hearing.  As to (c), I conclude: (i) there was sufficient evidence that the appellant had shouldered the respondent and had placed his foot in the door; (ii) Mr Johnson did not see the beginning of the incident, and that there was therefore sufficient evidence to find the appellant guilty.  The appeal is dismissed.
13.	MR PATHAK:  My Lord, I understand that the appellant is publicly funded for the purposes of these proceedings and, given that the learned judge stated the case, I have no application to make.
14.	MR SOUTHEY:  May I ask for assessment? 
15.	MR JUSTICE MOSES:  Yes, you may.  Thank you both very much.