R v Harron
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 21 February 1996 |
| Judgment citation (vLex) | [1996] EWCA Crim J0221-2 |
| Docket Number | No. 95/6898/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 February 1996 |
[1996] EWCA Crim J0221-2
Before: Lord Justice Beldam Mr Justice McCullough the Recorder of London (HHJ Sir Lawrence Verney) (Acting as a Judge of the CACD)
No. 95/6898/Y4
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR I WEST appeared on behalf of the Appellant
MS J MACKIE (MR A GOLDER-WELBY, 23.1.96) appeared on behalf of the Crown
Wednesday 21st February 1996
Mr West and Ms Mackie, Mr Justice McCullough is unable to be present as he is on circuit. He has, however, seen a copy of the judgment of the Court, and he agrees with it, and the judgment I am about to read is the judgment of the Court.
The appellant, who is 32 years of age, appeals against his conviction on 5th October 1995 in the Crown Court at Bradford of assault occasioning actual bodily harm. He was sentenced by His Honour Judge Kent Jones to 12 months imprisonment. He had been found guilty of assaulting Michael Brocklehurst on 2nd October 1994 by hitting him with a glass above his right eye at about 1.30am in Cats Night Club in Halifax. The Club is in the basement of premises occupied by Baileys Bar on the ground floor. The victim had arranged to meet his girlfriend, Kieron Patterson, at the Club at about 11.00pm. However, after meeting she and Michael Brocklehurst had, in fact, remained drinking and dancing with their own groups of friends.
Michael Brocklehurst gave evidence that whilst he was standing at the edge of the dance floor he felt a blow on the right hand side of his face on his eye. He did not see the person actually inflict the blow, but he immediately turned and saw the appellant standing directly in front of him and smiling, with his hand coming down and away from him with a glass in it. Almost at once he lunged at the appellant and scuffled with him. This attracted the attention of bouncers who separated them. The appellant then ran off and Michael Brocklehurst was taken upstairs and outside, and eventually to hospital where he received six stitches around his eye.
Kieron Patterson did not see the attack on Michael Brocklehurst. She had gone into Cats Bar at about 11.30pm. While there she saw the appellant in the Club before the incident took place. She knew him well as she had known him for about six months because he had worked in Baileys in the pub for about that time. Afterwards she knew him as a customer. She would normally see him every week for an average of 30 or 40 minutes, and the last time she had seen him before the incident was the week before. According to her, while she was in Cats Bar she had walked past the appellant. As she got level with him she felt someone pinch her bottom and was sure it was the appellant. Shortly after this incident the appellant grabbed her by the arm, swung her round, and asked her to give him a kiss. She refused and he then said to her, "Is it because your boyfriend's here?", adding, "He won't be here for long."
Michael Brocklehurst also knew the appellant well. He had known him over a period of about five or six months before he was attacked. He, too, used to see him regularly as a bouncer in Cats Bar.
The appellant had the name "Stacey" tattooed on the right side of his neck. According to Michael Brocklehurst he had actually seen this tattoo on the appellant's neck when he turned and faced him after he was attacked. In addition, he said the appellant had tattoos on his "hands". In this he was incorrect, though the appellant did have tattoos on his arms.
As the judge told the jury in the course of the summing-up, if Michael Brocklehurst was telling the truth about having seen the word "Stacey" on the appellant's neck, it was a strong factor confirming that the appellant was the man with a glass in his hand at the side of the dance floor immediately after he was attacked.
The appellant was arrested sometime later. During interview he declined to answer questions, as was his right. He was asked if he had an alibi he wished to put forward at that stage and again, as he was entitled to do, he said, "I'll sort it out in court."
When he gave evidence he said he had not been to Cats Bar on the night in question at all. He had gone out to Halifax town centre and had gone to Baileys with David Brant and Damien Lofthouse. After Baileys he had gone to the Bull Club where he had met his girlfriend, Sheriden Rigley, at about 11.00pm. They stayed there until about 12 o'clock when he had become a lot the worse for drink, and had got a taxi to his house in Mixingdon. They arrived there some time after midnight where David Brant's daughter, Kimberley Brant, had been babysitting. In short, he denied that he had been into Cats Bar that night, and said he had got home just after midnight, had not gone out again, had not seen Michael Brocklehurst and had not struck him with the glass. Further, he had never seen Kieron Patterson and had not tried to get off with her, as she had described, had not made the comments to her she attributed to him, and did not see her a week or two later in Baileys and say, "How's your boyfriend?"
The first he knew of the allegation against him was on the Monday after the incident. He learned of it when he went into Baileys and was told that two police constables were looking for him about a spot of bother with Mick Brocklehurst. His girlfriend, Sheriden Rigley, gave evidence supporting him, as did Kimberley Brant.
The ground of appeal is that there was a material omission from the judge's summing-up which renders the conviction unsafe. It is said that the judge failed to direct the jury that if they rejected the alibi evidence called by the defendant, they ought not to conclude from such rejection that the defendant must be guilty. He should have told them to consider why the alibi had been fabricated, if that was their conclusion, warning them that alibis are fabricated for other reasons than attempting to cover up guilt. He should also have told them that the fact that the defendant had lied about where he was at the material time did not prove he was where the prosecution said he was.
The appellant's conviction was therefore unsafe.
After directing the jury upon the burden and standard of proof, the judge said:
"That leads on to another matter. Mr Harron's defence here is one of alibi. He says 'I didn't do it. I couldn't have done it because I wasn't there at the time and I have got witnesses to call to show that.' Well although he raises that defence he does not have to prove it. The prosecution have to disprove an alibi, if it is raised in a case, because the prosecution have to prove the case and that involves disproving any defence, like a defence of alibi. So his witnesses, you do not have to be sure they are right, you have to be sure they are wrong and that the other evidence called by the prosecution is right."
He then reminded the jury that the evidence called by the prosecution of Michael Brocklehurst and Kieron Patterson was that the appellant was in the club and, according to Michael Brocklehurst, was the person who assaulted him, and he said:
"It is not disputed that Michael Brocklehurst was assaulted. The question in dispute is who did it? because the defence say 'Well, yes, obviously he was assaulted. There's the photograph to show it, but I didn't do it.' They say that the identification of him as the assaulter by those two witnesses is incorrect, wrong, so, members of the jury, this case is one of you being satisfied of the identity of the assaulter.
There are really two issues in that for you to consider. Firstly, could it be the case that those witnesses are mistaken, that it is a case of mistaken identity, genuinely mistaken, genuinely believing it is him, but in fact are wrong about it, or, on the other hand, if you decide that could not be the case, that it cannot be a case of genuine mistake, are they lying about it for some reason? So it is really two issues here for you to decide."
The judge then directed the jury on the question whether it was a case of mistaken identification, pointing out the special need for caution, which he said applied in relation to genuinely honest identification rather than deliberately false identification because:
"…..that is not identification at all really, that is lying,….."
He gave the jury all the warnings suggested by the guidelines given in the case of R. v. Turnbull. He then turned to the second question, saying:
"But, as I say, if you decide that either of the witnesses knew the defendant well enough to be able to recognise him, and did have a proper opportunity to recognise him, then if they say it was the defendant they must, must they not, either be right or lying, if there is no room for mistake? So in that case it is not a question of mistaken identification. It is a question of deliberately false identification, and then, of course, the issue for you to decide is not whether or not there might have been a mistake, but whether or not that witness is lying about it deliberately for some reason saying it was the defendant when in fact they know very well it was not, they did not recognise him, it was someone else, who they do not for some reason name."
He then reviewed the evidence and prefaced his remarks by saying:
"As I say, he does not have to prove his alibi. The prosecution will have to prove to you that these witnesses are not telling the truth, or at least are not accurate."
Finally he said:
"Are you sure on the evidence of Michael Brocklehurst and Kieron Patterson that it was the defendant who attacked him? or, having heard the evidence...
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