R v Cavanagh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,MR. JUSTICE GEOFFREY LANE,To |
| Judgment Date | 09 March 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0309-7 |
| Docket Number | No. 2240/C/71 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 March 1972 |
[1972] EWCA Crim J0309-7
Lord Justice Lawton
Mr. Justice Geoffrey Lane
and
Mr. Justice Mars-Jones
No. 2240/C/71
No. 2247/c/71
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. A.G. KENNEDY appeared on behalf of the Appellant.
MR. P.G. SMITH appeared on behalf of the Crown.
I will ask Mr. Justice Geoffrey Lane to deliver the judgment of the Court.
On the 29th April 1971 at Liverpool Crown Court, these two Appellants were convicted of the offence of unlawfully wounding a man named Bhatanagar. Cavanagh was sentenced to eighteen months' imprisonment and a suspended sentence of six months' imprisonment imposed on him on 10th July 1970 at the same Court was ordered to take effect consecutively as a term of three months, making a total term of twenty-one months. Shaw was sentenced to two years' imprisonment. In his case also suspended terms of nine and six months' imprisonment imposed on 10th July 1970 were ordered to take effect consecutively as a term of twelve months, making in all three years' imprisonment.
Each of them now appeals to this Court against conviction, the single Judge having adjudged that the grounds of appeal raised a point of law.
The indictment contained three counts. The first alleged against both Appellants that they had jointly robbed one Talwar; the second, a similar charge of robbery in respect of the man Bhatanagar; the third count was likewise a joint charge that both men had wounded Bhatanagar with intent to cause him grievous bodily harm.
At the close of the prosecution case the Judge withdrew both counts of robbery from the jury's consideration, and left to their consideration only the alternative on the third count of unlawful wounding.
The facts of the case were these. Talwar, Bhatanagar and Moses were three Indian seamen. They went together to a club in Liverpool on the evening of 3rd December 1970. That club proved unsatisfactory because it was overcrowded and there were apparently insufficient women available. The Indians then met the two Appellants outside the club and were invited by the Appellants to go to what was described as a better club in another part of the town. A taxicab was summoned and all five travelled in it to a house apparently known to the Appellant Shaw. There they alighted. Shaw knocked on the door of the house and a man came out to speak to him.
Shaw then returned to the Indians and struck Bhatanagar on the left eyebrow causing laceration and bruising. At the committal proceedings Bhatanagar gave evidence that he was then robbed of a sum of money. This evidence was not given at the trial owing to the absence of Bhatanagar. Talwar ran off when he saw what was happening, but the Appellant Cavanagh ran after him and seized him by the overcoat collar. The coat came off, Talwar escaped, and was joined by Moses, who had also decided that retreat was advisable.
Talwar and Moses came back to the house shortly afterwards with a policeman. Shaw was still there. Talwar said to the policeman, "That's the man who hit my friend", to which Shaw replied, "What's the game?" He was told that he would be arrested for robbery and replied, "It was self-defence".
As they were on their way back to the Police Station, they saw the Appellant Cavanagh who was thereupon arrested. When charged he said, according to the policeman, "You've got me bang to rights".
Bhatanagar was said to have identified both men at the police station. Shaw's riposte was that Bhatanagar had started the fight.
The issues before the Jury were accordingly simple. Were they certain that the attack on Bhatanagar was in pursuance of a joint plan between the Appellants? Were they certain that Shaw was not acting in self-defence?
No criticism is, or indeed could be, made of the direction to the jury.
The sole point in this appeal arises in this way. All the three Indians, being seamen, were not readily available to give evidence. The case was listed for mention on 19th February and again on 5th March 1971. On each occasion it was stated on behalf of the prosecution that the witnesses were not available. When the case finally came on for trial on 26th April 1971, it happened that contrary to expectations the witness Bhatanagar had been unable to sail with the other two Indians because of illness or injury. There was a possibility that he might perhaps be able to be flown to this country from India within two or three days, but it was by no means certain. His name was listed on the back of the indictment as a witness.
The prosecution were ready and willing to proceed. No application was made that the deposition of Bhatanagar should be read. Counsel for the defence submitted that the trial should not proceed in the absence of Bhatanagar. That submission was overruled by the learned Judge and the trial accordingly continued.
Mr. Kennedy on behalf of the Appellants now submits to this Court that the decision was wrong, and that the trial should not have been allowed to proceed in the absence of Bhatanagar. That submission is based primarily on the judgment of this Court in R. v. Oliva, 49 Criminal Appeal Reports 298. At page 309 of that report...
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