R v Savage ; DPP v Parmenter
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1990 |
| Date | 20 July 1990 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal
Before Lord Justice Glidewell, Mr Justice Ian Kennedy and Mr Justice Fennell
Criminal procedure - indictment - unlawful wounding
In the ordinary way an allegation of unlawful wounding, contrary to section 20 of the Offences against the Person Act 1861, would import or include an allegation of assault.
Accordingly, it was open to a court, in the exercise of its power under section 3(1) of the Criminal Appeal Act 1968, when quashing a conviction of unlawful wounding, to substitute a conviction of assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act.
The Court of Appeal so stated when giving reasons for the court (Lord Justice Glidewell, Mr Justice Ian Kennedy and Mr Justice Brooke) having allowed on April 26 the appeal of Susan Savage against her conviction on October 3, 1989 in Durham Crown Court (Mr Recorder Williamson, QC and a jury) of unlawful wounding. She was made subject to a community service order of 120 hours, which she had completed.
The court substituted a conviction of assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act.
Mr Paul Fleming, assigned by the Registrar of Criminal Appeals for the appellant; Mr Simon E Wood for the Crown.
LORD JUSTICE GLIDEWELL said that the appellant was charged with unlawful and malicious wounding, the allegation being that she had thrown a glass of beer over a former girl friend of her husband in a public house, as a result of which the glass broke and cut the complainant.
The appellant's evidence was that she intended to pour beer over the complainant, and did so, but that she turned away with the glass in her hand, put it down on a table and did not know how the complainant came to be wounded.
The jury must have concluded that the appellant let go of the glass, and that it was the glass, or splinters from it, that hurt the complainant.
On appeal, the issue was whether the recorder's summing up was correct in relation to the word "maliciously" in the offence. The test imported by that word was subjective, not objective.
The recorder had erred in directing the jury that "malice" meant that a deliberate act had been committed against the complainant which resulted in a wound occurring; he omitted to direct the jury that they had to find that the appellant foresaw that some physical harm would result: see R v MowattELR ((1968) 1 QB 421). Thus, there had been a misdirection and the conviction must be quashed.
The question then was whether it was possible to substitute any other verdict, and two alternative verdicts had been canvassed: common assault, and assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act.
After the appeal had been argued, their Lordships had heard R v Mearns(The Times May 4) and had decided that since section 40 of the Criminal Justice Act 1988 came into force, common assault was no longer a possible verdict at a trial on indictment for a more serious offence
unless originally, or by way of amendment, a specific count alleging common assault was included in the indictment.
Since there was no count of common assault in the present indictment, that alternative was not one of which the jury could have found this appellant guilty.
However, the same was not true of assault occasioning actual bodily harm, which was an indictable offence. The question arose then whether the jury could have found the appellant guilty of that offence.
Did the allegation of wounding import or include an allegation of assault? In their Lordships' view, in the ordinary way, unless there were some quite extraordinary facts, it inevitably did, and certainly in the...
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