R v Carr (Leslie Joseph)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 05 October 1999 |
| Judgment citation (vLex) | [1999] EWCA Crim J1005-27 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 98/6777/W5 |
| Date | 05 October 1999 |
[1999] EWCA Crim J1005-27
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Mr Justice Scott Baker
and
Mr Justice Curtis
No. 98/6777/W5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR MALCOLM SWIFT QC appeared on behalf of THE APPELLANT
MR J SPENCER QC appeared on behalf of THE CROWN
Tuesday 5 October 1999
On 12 October 1998, in the Crown Court at Leeds, the appellant was found not guilty of murder on the verdict of a jury but guilty of manslaughter. He appeals against conviction by leave of the full court.
The indictment against him simply alleged in common form that on 30 August 1997 he murdered the deceased Kieran Austin Doherty. The killing occurred very early in the morning of 24 August outside a nightclub in Wakefield where the appellant was employed as a doorman or bouncer. The victim had been a member of a party who attended the club on that night to celebrate the forthcoming wedding of one of their number. Some members of the party had been drinking all day. There was trouble inside the club, of which it is not suggested that the deceased was in any way the instigator, but he and his party were ejected. After their ejection the deceased was the subject of an assault which felled him to the ground with the result that, on falling to the pavement, he fractured the back of his skull and suffered injuries to his brain from which he subsequently died.
There was a mass of evidence at the trial, not all consistent and not all apparently describing the same assault. Some witnesses described a karate kick delivered to the face of the deceased. Others described a blow delivered with a fist.
Before the jury were empanelled at the outset of the trial on 5 October the defence asked the judge to direct the prosecution to give written particulars of the way in which the case against the appellant was put, those particulars having been informally requested of the prosecution and refused. The judge declined to make such an order, taking the view that the nature of the Crown's case would become quite clearly apparent in the course of the opening.
It was a matter of some importance to the defence since if the alleged assault which the appellant was said to have committed was delivered as a karate kick, the sole issue in the trial was one of identification. If, on the other hand, the assault was said to have been delivered with a fist, the appellant would strongly have relied on the contention that he was defending himself.
As already stated, the judge declined to order written particulars to be given and counsel representing the Crown opened the case. In the course of his opening he said:
"…. the Deceased approached the defendant who was dealing with one of his friends. The defendant reacted and lost his self-control. First, he struck out with his fist and missed. This was followed immediately and with great speed with a karate kick to the Deceased's face. The kick was delivered with speed and precision, so fast that witnesses who speak of a punch did not see it. The Deceased was felled immediately and went back cracking his head and fracturing his skull.
The prosecution case is that, when the defendant delivered the karate kick to the head of the deceased he demonstrated an intent to cause at least serious bodily injury. The defendant did not mention the kick in interview because he knew that to use a kick was unreasonable and unjustified and was therefore an unlawful attack not in self-defence."
It seems from that passage that the case clearly to be put was that the fatal blow was delivered by a karate kick and no reference was made to any alternative.
At the conclusion of all the evidence called by the Crown the defence made a submission that there was no case to answer. Submissions were made on that point in the course of which leading counsel representing the appellant said:
"That the Crown's case is, and has always been, that the fall to the ground which caused the fatal injury to the deceased was caused by a kick which they say was administered by the Defendant. I am sure that I would not be overstating the case if I said that if there were any other cause of the fall to the ground other than a kick, then the Crown's case would fail. Accordingly, your Honour, it is our submission that the evidence in relation to whether or not the Defendant kicked the deceased is suspect to say the least, and that it is taking it at its highest so unreliable that a properly directed Jury could not properly convict the Defendant on it."
Counsel then dealt with the three witnesses who had testified to seeing a kick, and dealt rather more briefly with two witnesses (upon whom it appeared up to then the prosecution did not rely) who had mentioned a punch. He summarised his submission by contending:
"And so our submission is really simply this. That the Defendant is not satisfactorily identified as having kicked the deceased, and that the deceased on the evidence went down on to the floor for a reason which I am sure the Prosecution would agree if it was a punch or a push could not possibly be said by them to be an unlawful act on the part of the Defendant. And they, I am sure, would not seek to perpetuate this case based on that evidence if it stood alone.
And so our simple submission is that this is in a sense a 'plums and duff' type of case, in which the Jury would be unable to reconcile the two versions of events. But that even—putting it in other words other than those of Mr Justice Turner, I might perhaps describe it as a case in which the evidence is so at odds within itself that a properly directed Jury could not properly convict upon it."
Prosecuting counsel resisted that submission, submitting in reliance on R v Galbraith that there was evidence on which the jury could rely to convict the appellant if they accepted the evidence. The question was however raised by the trial judge as to what the basis of the case was, and we find this exchange:
"THE JUDGE: …. Could I just ask you about one thing, Mr Spencer …. that was raised by Mr Swift in the course of his argument to me? It was not directly concerned I think with the position as it is being put now, but what he was for saying was that the Crown would not seek a conviction unless ….
PROSECUTING COUNSEL: There was a kick.
THE JUDGE: Unless there was a kick, yes. Is that the Crown's position?
PROSECUTING COUNSEL: It is not the position, I am afraid. No."
After various brief exchanges the judge continued:
"But I just thought that I would like to establish myself whether or not that was the Crown's position as Mr Swift seemed to be assuming.
PROSECUTING COUNSEL: It is not, your Honour, no. You will recall when I opened the case that I placed emphasis on the fact of the kick as being evidence of the specific intent ….
THE JUDGE: Yes.
PROSECUTING COUNSEL: …. and that is all that I am prepared to say."
The submission of no case was rejected.
The defence then repeated their request for particulars after the rejection of that submission. They submit (and we do not understand this to be contested) that the trial had up to then been conducted on the basis of the case as opened: that the deceased was felled by a karate kick. It is further asserted that the appellant himself was not cross-examined to the effect that he had felled the deceased with a blow by his fist, and indeed it is said that the Crown itself suggested that two witnesses whom it had called, and who had testified to a blow with the fist, were mistaken. The defence tell us (and again we do not understand this to be contested) that it was not until the last witness was called by the defence, a Mr Sterling, that there was any detailed cross-examination about the nature of any blow which the appellant was said to have delivered with his fist.
Before the summing-up began on 9 October the defence requested the judge to invite the jury to return a special verdict if they were to convict of manslaughter, to indicate whether their verdict was based on a kick or a punch. The judge declined to invite the jury to return a special verdict, and we can understand his reasons for not favouring that course.
The case as advanced by the Crown was summarised by the judge in summing up at page 8 of volume 1 where he said:
"The Prosecution's case is that there is a body of sober, reliable witnesses who establish to make you sure—whose evidence can make you sure that the deceased was felled by the Accused by means of what has been called a karate kick; that is to say a kick which was delivered with the shod foot at the height of the man's eye. Alternatively, they say that he was not felled in the way the witnesses described by a kick. They say that he was felled by the accused man in circumstances which rendered the blow unlawful, either because it had nothing to do with self- defence, or because there was no need to use such force as produced that effect."
Our attention is similarly drawn to a passage in volume 2 at page 3 where the judge said:
"And so allowing for the fact that people have different views and say different things, members of the Jury, you have got to ask yourselves, well, is there a theme which runs through it all and about which you can be sure; a solid core of evidence which makes you sure that certain events did happen in the way in which the Crown say? The Prosecution say that there is, and that it becomes apparent in two aspects of the case.
First of all, members of the Jury, they say that you can be sure that Doherty lay unconscious on the ground outside that pub because he had been kicked. And secondly, that only the...
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