R v Arnold
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leveson |
| Judgment Date | 21 May 2004 |
| Neutral Citation | [2004] EWCA Crim 1293 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200300503D1 |
| Date | 21 May 2004 |
[2004] EWCA Crim 1293
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
The Right Honourable Lord Justice Hooper
The Honourable Mr Justice Leveson and
His Honour Judge Mettyear
(Sitting as a Judge of the Court of Appeal Criminal Division)
Case No: 200300503D1
Mr. Paul Hynes (instructed by the Registrar of Criminal Appeals) for the Appellant
Mr Benedict Kelleher (instructed by the Crown Prosecution Service) for the Respondent
On 13 May 2004, we heard this appeal and, at the conclusion of the argument, dismissed it. Bearing in mind the issues that had been argued, however, we reserved our reasons; these we now provide.
On 16 Dec 2002 at the Crown Court at Croydon before H.H. Judge Simon Pratt and a jury, this appellant was convicted of two offences of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. Because of his criminal history, he was sentenced to concurrent automatic terms of life imprisonment with, in each case, a determinate period pursuant to the provisions of s 109 Powers of Criminal Courts (Sentencing) Act 2000 of 6 years less 187 days reflecting his period of remand in custody. He now appeals against conviction with the leave of the single judge.
The facts giving rise to this prosecution can be shortly summarised. Between 8.00 pm and 8.30 pm on 7 December 2001, Mr Kevin Oakins left the New Inn Public House on Mitcham Road, Croydon. When he left, he noticed a man whom he knew as "Daley" speaking to two men and a woman. He thought that the two men and the woman were persons he had seen in the public house. As he moved towards this group intending to make his way home, the man Daley, called "Run". Daley pushed his right shoulder so he moved to the left but as he did so the older of the two men, who had an object in his hand, lifted his arm and something came down into his face. In fact, he had been slashed deeply twice across the face and, in addition, stabbed to the body. Mr Oakins was unable to identify his attacker. The man uttered no word and there was no motive for the attack given or obvious.
Some time later that same evening, said to be between 10.30 and 11.00 pm, Mr Christopher Morley left the Hare and Hounds Public House in Purley Way, Croydon which was in the order of a mile from the New Inn. He had been drinking and intended to telephone a taxi. As he left, he saw a man whom he vaguely knew by the name of Ricky meet with another man in the car park. He approached Ricky and greeted him whereupon the other man asked him who he was but, as he explained, the man slashed him three times deeply across his face, chin and stomach. Again, nothing was said and there was no motive for the attack given or obvious. The police commenced enquiries into both incidents (which according to the first calls to the emergency services were less than 1 1/2 hours apart) but, initially, no progress was made.
The appellant normally resides in Thailand although he had arrived back in this country on 7 December, the day of these incidents, and travelled to his parents' home which is also in Purley Way, Croydon, less than a mile from the Hare and Hounds and over half a mile from the New Inn. He was arrested on 12 June 2002 (according to his passport having spent most of the early part of 2002 back in South East Asia). When interviewed, he made no comment although he telephoned his mother after arrest and she said "It was the day you came back from Thailand wasn't it?" On the following day, he was identified at an identification parade by Mr Morley as his attacker. Further, it was clear that the appellant had, at least at some stage on 7 December, been in the New Inn (outside which Mr Oakins was attacked): his fingerprints were found on two half pint glasses that were seized at 3.00 am on the morning of 8 December.
In the meantime, the police identified the man "Daley". On 18 June 2002, Mr Daley Stevens was arrested and interviewed under caution. Immediately thereafter, the view was taken that it was appropriate to consider him as a witness; he was bailed and he then made a witness statement to the effect that it was the appellant, whom he knew, who had inflicted the injuries; it will be necessary to examine that statement in due course because, as was well known prior to the trial, Mr Stevens had subsequently sought to retract and refused to attend the trial.
We should say something about the defence case. When he eventually came to give evidence, the appellant denied involvement in both incidents saying that he spent that evening at his mother's home sleeping from about 8 pm or 8.30 pm. until the following day. He admitted having bought a drink at the New Inn earlier that evening and said that he may have moved another glass; he did not know either injured man, Daley Stevens or "Ricky". He called a number of witnesses in support of his alibi.
Before the start of the trial, Mr Paul Hynes (who also appears for the appellant today) made an application to sever the indictment so that the two allegations of wounding with intent could be tried separately. He argued then, and repeats the argument, that although the counts were lawfully joined in the same indictment, each was evidentially weak and the risk was that the two would be added together so that the sum total of the evidence was unfairly greater than the value of the individual constituent parts that directly affected each separate case.
The learned judge approached this application without any consideration of the separate issue whether the evidence of one attack was admissible in relation to the other by way of similar fact, making the perfectly accurate point that a decision on the latter does not predicate the way in which he should approach joinder and severance. Having cited Regina v. Blackstock 70 Cr App Rep 34, and assuming for the purpose of the argument that he would not resolve the question of similar fact in favour of the Crown, he took the view that the usual warning that the jury must not add all the counts together or use evidence on one count as evidence on the other was one which the jury was perfectly capable of following. He thus refused to sever. This ruling was well within the proper exercise of his discretion, and this ground of appeal fails.
In any event, the ruling became academic because, at the conclusion of the evidence, the learned Judge ruled that the evidence on each count fell within the category of similar fact on the basis of "the unlikelihood of coincidence". If he was correct about that, there could never be any merit in the appeal against his refusal to sever; at its highest, he would have had to make the decision as to the issue of similar fact earlier than he did (having heard argument on the issue at the same time as the application to sever was made). If he was not correct, given that he gave the jury directions as to similar fact, there is, equally in any event, an unarguable basis for quashing the convictions.
It is thus convenient to deal with the question of similar fact at this stage. In short, the Crown relied on a number of features of these two offences. First, both were committed on the same evening, within a comparatively short time of each other at locations comparatively proximate to each other; both were unprovoked, were initiated without explanation and were apparently motiveless; both occurred as the victim had left a public house and approached his attacker who was with at least one other person; in each case, the victim was the subject, first, of a deep slash or slashes to the face with a sharp implement causing in both cases full thickness wounds to the cheek and both were injured by being stabbed or slashed to the abdomen. In that regard, the Crown contended that the injury caused to the cheek in each case was broadly similar in shape and size.
We interpose this analysis to deal with a ground of appeal concerning the admissibility of photographs of the injuries. Mr Hynes submitted that the photographs could only excite prejudice and were of little probative value given the absence of medical evidence as to causation. The learned judge ruled that provided the jury did not seek to set themselves up as experts, but dealt with the matter in a common sense way, the photographs were relevant to the issue whether there was one attacker or two. The submission was renewed (albeit accepted as a 'makeweight') in this court. In our judgment the approach of the learned judge was faultless.
Returning to the issue of similar fact, it is necessary to start with the formulation set out in Director of Public Prosecutions v. P [1991] 2 AC 447 by Lord Mackay in these terms (at page 462):
".. I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include 'striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important...
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