R v Wang (Cheong)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 10 February 2005 |
| Neutral Citation | [2005] UKHL 9 |
| Court | House of Lords |
[2005] UKHL 9
HOUSE OF LORDS
Ordered to Report
The Committee (Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Carswell) have met and considered the cause Regina v. Wang (Appellant)(On Appeal from the Court of Appeal (Criminal Division)). We have heard counsel on behalf of the appellant and respondent.
This is the considered opinion of the Committee.
The question of law of general public importance certified by the Court of Appeal to be involved in its decision in this case is:
"In what circumstances, if any, is a judge entitled to direct a jury to return a verdict of guilty?"
For the appellant it is contended that the judge may never do so in any circumstances. The Crown contests that view, while acknowledging that the circumstances in which such a direction may be given are rare and exceptional. Such circumstances, it is said, exist where the burden of raising a defence rests on the defendant, and he has failed to discharge the burden upon him; or when the facts are agreed at trial, there is nothing calling for adjudication and there is no basis on which the defendant can properly avoid conviction on the uncontested facts.
Behind this clear but narrow issue dividing the parties lies an area of common ground which it may be helpful to identify, to obviate any possibility of misunderstanding. It is common ground that if a judge is satisfied that there is no evidence which could justify the jury in convicting the defendant and that it would be perverse for them to do so, it is the judge's duty to direct them to acquit ( Director of Public Prosecutions v Stonehouse [1978] AC 55 at 70, 79-80 and 94; Devlin, Hamlyn Lectures, "Trial by Jury", 1956, p 78). It is agreed that a judge should withdraw a defence from the consideration of the jury if there is no evidence whatever to support it, and he need not direct the jury on an issue not raised by any evidence. The appellant accepts that in a case where, on applying the law as expounded by the judge to facts which have been agreed or not disputed at trial, the only reasonable course is to convict, the judge may comment in stronger terms than would otherwise be permissible. But even in such a case the appellant submits that the judge may not direct the jury to convict; the Crown submits that he may in the limited circumstances identified above.
The facts
The appellant was waiting for a train at Clacton-on-Sea railway station on 27 February 2002 when his bag was stolen. A search was made and the bag found in the possession of a thief who tried to deter the appellant from calling the police by suggesting that the bag contained items the appellant should not be carrying. From the bag the appellant produced a curved martial arts sword, in its sheath. The police were called and on a further search of the bag a small Ghurkha style knife was found. In due course the appellant was indicted on two counts of having an article with a blade or point in a public place, contrary to section 139(1) of the Criminal Justice Act 1988, one count relating to the sword, the other to the knife.
The appellant was tried in the Crown Court at Chelmsford before Judge Pearson and a jury. There was no issue about the appellant's possession of the two articles on the day in question. But he testified that he was a Buddhist and that he practised Shaolin, a traditional martial art. Those who practised Shaolin were Buddhists and were called Shaolin followers. To learn Shaolin, one was instructed how to behave and keep the spirit. It was necessary to have a good personality. Shaolin followers learned to help society and protect people, to which end they relied on Buddhist teaching, especially love without denominations or limitations. The sword was one of eighteen weapons in which a Shaolin follower must become expert, and the knife was a "willow leaf knife" the use of which depended on high skill. One who excelled would become the teacher of all followers in the future. To practise Shaolin was not to worship Buddha but to keep the spirit of the people. On the day in question he had been on his way to see his solicitor. He had taken the sword and knife with him because he did not like to leave them in the place where he was staying in Clacton, and he liked to stop at remote and uninhabited places to practise Shaolin.
At the conclusion of the defence case, and before speeches, the judge sent the jury out and said to counsel that he could see no defence to these two counts. Mr Shaw, for the appellant, made plain his reliance on section 139(4) and (5)(b) of the 1988 Act, which provide:
"(4) It shall be a defence for a person charged with an offence under this section to prove that he had good reason … for having the article with him in a public place.
(5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him –
(b) for religious reasons;
…"
Mr Shaw submitted that the appellant had advanced a lawful defence, which should be left to the jury. Miss Davey, prosecuting, referred to "some hesitancy where one is, effectively, withdrawing a defence from the jury", but acquiesced in the judge's view that the jury should not, properly directed, find there was "any conceivable reasonable excuse". The jury were then recalled, the judge told them that he would direct them to return guilty verdicts on both counts and he explained his reasons for doing so. He concluded:
"As a matter of law, however, the offences themselves are proved and, under those circumstances, I direct that you return guilty verdicts on each of the two counts on this indictment."
The following colloquy then took place:
"The clerk of the court: Madam, will you, please, answer 'guilty' to both of my questions? Members of the jury, you are agreed upon your verdicts. On his Honour's direction, do you find the defendant Cheong Wang guilty on count 1 of charging him with having an article with a blade or point?
The foreman of the jury: Guilty.
The clerk of the court: On count 2, do you find the defendant guilty of having an article with a blade or point?
The foreman of the jury: Guilty.
The clerk of the court: Those are the verdicts of you all?
The foreman of the jury: Yes."
The appellant was conditionally discharged for twelve months and forfeiture orders were made.
The appellant appealed to the Court of Appeal (Laws LJ, Curtis J and the Recorder of Cardiff), which accepted a distinction between (a) cases in which it "is said that on the evidence an issue as respects which the burden of proof lies on the prosecution could only rationally be decided against the defendant" and (b) cases in which it is said that the defendant had failed to discharge an evidential burden lying on him: [2003] EWCA Crim 3228, para 8. Reference was made to R v Bown [2003] EWCA Crim 1989, [2004] 1 Cr App R 151, as an example of a recent case in the second class, in which the Court of Appeal had upheld a direction to convict. In rejecting the appellant's appeal the Court of Appeal said:
"12. After careful consideration we have come to the conclusion that on this material the judge was justified in directing the jury to convict. The appellant's evidence was not capable of discharging the burden, which lay on him, of showing that he had the weapons with him for good reason (s.139(4), or for religious reasons (s.139(5)(b)). It is very far from clear that he had any settled intention to practise with them on the day in question; even if he did, there was on his own evidence no religious requirement that he do so, and in any event that was plainly not the predominant or only reason for his possessing them that day; the fact that 'there was no one at home to look after [them]' cannot, in our judgment, be a good reason for taking these weapons into public places. To borrow the words of Keene LJ in Bown: '[t]here was simply insufficient evidence to establish the defence to the degree of particularity which was requisite.'
13. The facts here are unusual. Nothing we have said is intended to encourage trial judges to direct convictions, even where the material issue is one on which the defendant carries the burden, unless it is plain beyond sensible argument that the material before the jury could not in law suffice to discharge the burden."
The law
Although a considerable volume of historical material was placed before the House on the hearing of this appeal, Mr David Perry, for the Crown, invited us to focus our attention on the criminal jury in its modern setting. This is an invitation we accept. The conduct of criminal trials has been profoundly changed by according the defendant the right to testify, by establishing a criminal appellate court and by extending access to free legal representation. Little help is therefore gained from pre-twentieth century authority. But over the last century or so the conduct of a trial on indictment has been much as it is today. Thus the trial is by judge and jury working together, although, as judges routinely explain, their functions are different. The judge directs, or instructs, the jury on the law relevant to the counts in the indictment, and makes clear that the jury must accept and follow his legal rulings. But he also directs the jury that the decision of all factual questions, including the application of the law as expounded to the facts as they find them to be, is a matter for them alone. And he makes plain that, whatever views he may express or be thought to express, it is for them and not for him to decide whether, on each count in the indictment, the...
To continue reading
Request your trial
-
R v Nicholson (Heather Shirley)
...leave it to the jury. If such a proposition requires cited authority, it is to be found in the principle enunciated by the House of Lords in R v Wang [2005] 1 WLR 661, in which their Lordships considered in a wholly different statutory context a statutory defence defined by reference to the......
-
DPP v Padraig Nally
...RESPONDENT AND PADRAIG NALLY APPLICANT AG, PEOPLE v DWYER 1972 IR 416 DPP v DAVIS 1993 2 IR 1 1993 ILRM 407 1992/11/3499 R v WANG 2005 1 WLR 661 2005 1 AER 782 WOOLMINGTON v DPP 1935 AC 462 CHANDLER & ORS v DPP 1964 AC 763 1962 3 WLR 694 1962 3 AER 142 DPP v STONEHOUSE 1978 AC 55 1977 3 ......
-
R v Caley-Knowles (Edward); R v Jones (Iorwerth)
...of Appeal, Criminal Division, to conclude, following the decision of the House of Lords in R v WangTLRWLR (The Times February 11, 2005; (2005) 1 WLR 661) that a conviction was safe in a case where the judge had directed a jury to convict. Mr John Dugan, solicitor, for Caley-Knowles; Miss Al......
-
R v G; R v J
...[2006] 2 All ER 257; [2006] 1 Cr App R 257, HL(E)R v Tabnak [2007] EWCA Crim 380; [2007] 1 WLR 1317; [2007] 2 Cr App R 34, CAR v Wang [2005] UKHL 9; [2005] 1 WLR 661; [2005] 1 All ER 782; [2005] 2 Cr App R 136, HL(E)Sunday Times v United Kingdom (1979) 2 EHRR 245APPEALS from the Court of Ap......
-
Subject Index
...834 .......................263–4R v Valentine [1996] 2 Cr App R 213........248R v Vo ( 1992) 15 WCB (2d) 241 (Man. CA) .... 103R v Wang [2005] UKHL 9 ..............................2 20R v Ward [1993] 1 WLR 619 ........................2 65R v Warner (1993) 96 Cr App R 324......... 119R v Web......
-
The prisoners could not have that fair and impartial trial which justice demands': A fair criminal trial in 19th Century Australia
...Kingswell v R (1985) 159 CLR 264 at 298–303 per Deane J; Cheng v The Queen (2000) 203 CLR 248 at [80]–[82] per Gaudron J; R v Wang [2005] 1 WLR 661 (UKHL) at [15]–[16]; Alduqsi v The Queen [2016] HCA 24, (2016) 90 ALJR 711 at [127]–[141] per Gaegeler J; and Question of Law Reserved (No 1 of......
-
Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence
...and argumentpresented to him in court.’ The courts, of course, are not anti-jury as such. On the contrary. In therecent case of RvWang [2005] UKHL 9, [2005] 1 All ER 782, for instance, the House of Lordsunanimously articulated a profound faith in the jury when refusing to rule that a judge ......
-
English Law's Epistemology of Expert Testimony
...Raz, Engaging Reason (1999) 138±9. See, also, Ward, op. cit, n. 15.24 A. Goldman, Knowledge in a Social World (1999) 312.25 Rv. Wang [2005] 1 W.L.R. 661.26 id., paras. 16±17, rejecting the trenchant criticism of `perverse' verdicts by Auld LJ,Criminal Courts Review (2001) 173±6 (ch. 5, para......