R v Alexander
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 02 November 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1102-2 |
| Docket Number | No. 5711/A/72 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 November 1973 |
[1973] EWCA Crim J1102-2
Lord Justice James
Mr. Justice O'Connor
and
Mr. Justice Talbot
No. 5711/A/72
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. T. J. GOUDIE appeared as Counsel for the Appellant.
MR. P. PURNELL appeared as Counsel for the Crown.
On the 3rd November, 1972 the Appellant Simon Christopher Alexander was convicted at the Central Criminal Court of an offence of causing grievous bodily harm with intent, an offence of rape and an offence of aggravated burglary. All the offences arose out of the same incident. He was sentenced to five years' imprisonment for the rape and three years' imprisonment for the other offences, all the sentences to be concurrent, five years in all.
He appeals against his conviction by leave of the single Judge, who referred the application for leave to appeal against sentence to the full Court. The Appellant himself drafted a number of grounds of appeal, but the ground upon which the single Judge gave leave related to an incident that took place in the course of the trial after the jury had retired to consider their verdict. The incident is described on page 31 of the transcript and amounts to this when supplemented by what this Court has been told upon the recollection of Counsel. There is really no dispute as to these facts:-
The jury retired after a reference to their being allowed to see any exhibit if they wanted to, and within a short space of time the Judge had risen and leading prosecuting Counsel had left the Court, but defending Counsel was still there as was the accused. The jury had left, being in the charge of the jury bailiffs - two in number, but, having gone what must have been a very short distance, one of the jurymen came into Court again. The Court, of course, was not effectively sitting at that time. He was not accompanied by either of the jury bailiffs into whose charge he had been placed. The purpose for which he returned transpired, on investigation later, to be to get one or more of the exhibits so that the jury, or he, could have them during the jury's discussion.
His arrival back in Court was observed both by the Appellant and by his Counsel and someone, and it may indeed have been defending Counsel, immediately put a halt to any further progress of that juryman. The juryman stayed where he was, no-one spoke to him at all, and the Judge was summoned back into Court. The rest of the jury came back into Court and then the learned Judge said: "I understand that the jury have come back to ask for exhibits", and Counsel for the Appellant said: "My Lord, one juror came back, and to regularise the position a message was sent via the jury bailiff for the whole jury to return. That is the difficulty, I believe." The Judge then enquired who wanted what and so the matter proceeded.
No application was made to discharge the jury, no protest was made at what had occurred except for the words of Counsel, "to regularise the position a message was sent via the jury bailiff for the whole jury to return". He recognised apparently that an irregularity had occurred in that one juryman had become separated from the others and had left the immediate charge of the jury bailiffs.
It is upon that incident that the argument has been addressed to this Court in support of the one ground of appeal. Mr. Goudie has considered the other grounds sent forward by the Appellant himself, as indeed the members of the Court have considered them, and Mr. Goudie has felt himself unable to advance any useful argument based on those grounds. This Court, having made its own consideration of the grounds in the light of the evidence, has arrived at the same conclusion that there was no hope whatsoever of quashing the conviction on any of those other grounds.
Having regard to the very narrow point upon which the appeal has been argued it is not necessary to state the facts of the offences in any great detail. What happened, on the prosecution case which the jury must have accepted, was that a twenty-four year old spinster, Miss Fox, was in bed on the night of the 21st/22nd April, 1972, sleeping alone in the house. She was awakened by something and raised herself in her bed and was immediately hit a number of times on the head with something hard. She struggled. The person who behaved like that towards her was, in fact, the Appellant. He inflicted upon her a number of injuries amounting to serious harm, he then raped her and left the premises.
His defence was that he had met her before, which she denied. She said he was a stranger. He said he had arranged with her that he should come to the house that night and she would be alone and he would be admitted. He had gone pursuant to that arrangement, had had sexual intercourse with her voluntarily on her part, and had then left. He had returned later after a telephone call to her, and, as she had put the telephone down during the call, he became annoyed and went to see her and it was on that occasion that he broke in and in some temper he had assaulted her, but he had not intended to do her serious harm.
There was other evidence. For example, in his version at the conclusion of the first instance of intercourse she had become disappointed with his performance, and had hit him with a coat hanger. Indeed, there was evidence that he had been to the hospital to receive medical attention at a time during the night which was before the girl was attacked and raped. Be that as it may, in essence the jury must have accepted the girl's version of what occurred in convicting this man of these offences.
The argument of Mr. Goudie on the one point that is taken proceeds in this way. It is a fundamental principle of criminal law and criminal procedure, that once the jury has been put in the charge of the jury bailiffs for the purpose of their retirement to consider their verdict, that jury should not be allowed to separate from each other and from the jury bailiffs. Of necessity it must arise that from time to time one or another juryman must leave the rest for natural purposes, but if they do so it must be in the presence of the jury bailiff and if that is done then there is no vice in it. But the jury must not separate from each other and from the charge of the jury bailiffs. Mr. Goudie says that if there is any breach, however minimal, of that fundamental principle, that vitiates the whole proceedings and makes the trial bad so that any conviction must be quashed.
Mr. Goudie says it is not open to a court to investigate whether or not there has been any communication with a juryman who has isolated himself, whether or not there has been any possibility of communication and whether or not there has been any prejudice to the accused person. Those matters, he says, are irrelevant: provided that there has been a breach of the principle then the conviction cannot stand.
In support of that proposition Mr. Goudie cites first of all the case of R. v. Ketteridge, reported in (1915) 1 King's Bench, page 467. The headnote summarizes the facts in these words: "After the summing up by the judge, the jury upon the trial of a prisoner for felony expressed their desire to retire and consider their verdict. The Court bailiff having been duly sworn proceeded to conduct them to the jury room. One of the jurors, apparently not understanding what they were intended to do, departed from his colleagues and left the building and was absent for about a quarter of an hour, when he rejoined his colleagues, his absence apparently not having been...
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