Neutral Citation Number:
[2009] EWCA Crim 549
Case No.
200805685/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Date:
Tuesday, 3rd March 2009
B e f o r e
:
SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MRS JUSTICE RAFFERTY DBE
MRS JUSTICE SWIFT DBE
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R E G I N A
v
MICHAEL GREENWOOD
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Computer Aided Transcript of the Stenograph Notes of
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Mr J Goodman
appeared on behalf of the
Appellant
Mr J Durr
appeared on behalf of the
Crown
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J U D G M E N T
1.
SIR ANTHONY MAY: It is quite frequently possible to pick holes in a judge's summing-up in a criminal jury trial. Judges, after all, have to do their summings up sometimes in hard pressed circumstances. Some may be of little consequence, others may be more important. The questions for this court in this appeal are whether criticisms of this kind of the summing-up in the case before us are made out and, if they are, whether they matter; or in the terms of the
Criminal Appeal Act 1968
, the court has to judge whether in the light of such criticisms as are made out an appellant's convictions are or are not safe.
2.
Michael Greenwood, the appellant, now aged 40, was tried in the Crown Court at Norwich before Mr Recorder Foster and a jury, who gave their verdicts on 26th September 2008. It was something of an untidy trial, with a background of the supply of drugs, but no one was charged in this trial with any drug offences. Mr Greenwood was charged eventually with four counts on an indictment, one count relating to an alleged event on 26th November 2007, the other three to events on the 3rd December 2007. All of these counts were said to have occurred at or in the vicinity of the address of a man called Carl Taylor.
3.
On 26th November 2007 Mr Greenwood went with his son to Carl Taylor's address to remonstrate with him about alleged selling of crack cocaine to his son. Carl Taylor gave evidence that both Mr Greenwood and his son had assaulted him and hit him more than once and then left, taking some cannabis and a £10 note. Mr Greenwood said that he neither hit Mr Taylor, nor stole anything from him. The jury acquitted him on a count of assault by beating and this was count 1 of the four counts.
4.
On 3rd December, according to Taylor, two people came to his front door. Taylor reckoned there would be trouble so he fired a warning blank shot from a gun. Someone kicked the glass in his front door. Mr Greenwood, according to Taylor, was one of those there. A piece of glass, he said, went into his arm from the broken front door. His evidence then was that Mr Greenwood, the appellant, wrestled with him for the key which was in the inside of the door. Mr Greenwood's hand was through the broken glass, he was unable to get hold of the key so he forced his way in. He took hold of Taylor's throat and threatened to kill him. Although he did not think it was deliberate, during the struggle the appellant pushed the glass from the broken window further into Taylor's arm and as result of this incident he had bleeding at the time and two scars on his arm. The larger scar was caused by the glass from the front door, the smaller one from where the appellant pushed his arm. He said at a rather later stage, so it appears in his evidence, that five men had been involved in this incident. One was a big man, not the appellant, Mr Greenwood, although he said this man did not touch him. The five men ran away afterwards.
5.
Count 2 on the indictment charged Mr Greenwood with causing grievous bodily harm with intent. The Recorder directed an acquittal on this charge when Mr Taylor said that the pushing of the glass may not have been deliberate.
6.
A reduced charge, count 4, had the same facts as unlawful wounding and of this count the jury unanimously convicted the appellant. His original case in a prepared statement in interview had been that he had not been involved in an incident at Taylor's address on 3rd December 2007 at all. His case in his defence case statement, which the jury knew of, was that he had been nearby Taylor's address when two people asked where Taylor lived. He pointed out where this was and the two men then set about to Taylor's address in the way described by prosecution witnesses. At one point he tried to pull a man he was afraid of off Taylor. He said that he thought that this was a drugs deal gone wrong. He had been too frightened to tell the police of this.
7.
His evidence in the trial on this was, in summary, that on 3rd December 2007 he was in the vicinity of Taylor's address when two men, whom he did not know, asked him if he knew where they could get some cannabis. He walked with them and asked them if they could get him some as well. He pointed out Taylor's flat and sat and waited for them to get the cannabis. He waited for five to 10 minutes before deciding to go and see what was happening. He walked to Taylor's flat and was surprised to see that the door had been smashed. He entered the flat and saw a large man on top of Taylor, punching him. He tried to restrain this man. The man did not stop but told the appellant to go away, which he did. As we say, the jury convicted him of unlawful wounding in the matter of pushing the glass into Taylor's arm.
8.
Another person at or in the vicinity of Taylor's address was Stuart Webb. On hearing Taylor's gun, he eventually at least shut himself in a bedroom which we were told was beyond the living area where the other incident was said to have taken place. His evidence was that two men came into the bedroom. One of them punched him twice to the left and right of his head. He subsequently identified his assailant with reasonable but not complete certainty as Mr Greenwood. Nothing now arises on the identification, the Recorder having given a
Turnbull
direction which is not criticised. The jury convicted Mr Greenwood unanimously of assault on Webb, and this was count 3 of the indictment. Mr Greenwood had denied this allegation of Webb. All he did that evening was to put his hand to try to restrain the large man from attacking Taylor.
9.
The Recorder summed up the law fully and in a way which attracts no criticism. He also summarised the main lines of the evidence of the two complainants and of Mr Greenwood in a balanced way. He told the jury that they were the judges of fact, that he would summarise the evidence but not refer to all of it and that they must have due regard to evidence he did not refer to if they thought it important and disregard evidence he did refer to if they thought it unimportant.
10.
The single ground of appeal against conviction on which the single judge gave leave is that the judge did not remind the jury, nor explain to them the significance of one or more significant conflicts or discrepancies between the evidence of Mr Taylor and that of Mr Webb respectively. Mr Goodman puts what may perhaps be regarded as the main or first inconsistency as follows: Mr Taylor gave evidence that only the defendant had attacked him and stated during the re-examination that "I was not attacked by anyone else other than Mr Greenwood." When asked if he was ever attacked by the big man, he stated: "That didn't happen, I ended up in the kitchen with Mr Greenwood." He further stated that the defendant had been with him and in his sight from the time he had entered the flat until he left.
11.
Mr Webb gave evidence and stated that a man approximately 5 feet 8 or 5 feet 9 inches tall, late 20s early 30s, with tanned white skin and black short hair "barged the door open and was shouting at me. I heard him speak and I'm not 100 per cent sure but it sounded a bit Irishy. He hit me twice on the right side of my face and once to the left. He took Carl's mobile phone and threw it across the room." This man was said by the Crown to be the defendant. Webb further stated that he came out of the bedroom and could see Carl Taylor on the kitchen floor with someone on top of him. He was about 6 feet 2 inches tall with a skinhead haircut, he was punching Carl. Mr Taylor had described the second man as very tall, about 6 feet 4 and as big tall scary looking with a big build. Mr Taylor further stated that he saw this man push straight into the bedroom: "He did not punch or push me at all."
12.
There are two, if not perhaps three inconsistencies between Taylor's evidence and that of Webb. Put shortly, Taylor said that he was only attacked by Mr Greenwood. Webb said he saw Taylor being attacked by a different very tall man. Taylor said there was such a man but he did not attack him physically. The defendant, Mr Greenwood's evidence was that he had tried to remove the large man from Mr Taylor and had been struck by the large man as he did so. This was, however, not the only discrepancy because Taylor's evidence was that it was the large man who went into the bedroom and that he, Taylor, had sight of the appellant, Mr Greenwood, throughout the episode.
13.
The Recorder did not mention either of these discrepancies in the summing-up. But he did remind the jury of Mr Greenwood's own evidence to the effect that all he did was to restrain a large man who was attacking Mr Taylor. Mr Goodman refers to authorities including
R v Barada
[1990] 91 Cr App R 131
,
R v R
[2007] Crim LR 478 and
R v Marashi
[2001] EWCA Crim 2448
, to the effect that it is a judge's duty to indicate the nature of a significant conflict of evidence, or of inconsistencies of evidence and the logical consequence of such conflict or inconsistencies as part of his summing-up to the jury.
14.
Perhaps there were, as Mr Durr suggests in this case, no very subtle logical consequences of these inconsistencies but there were significant discrepancies, such as we have described, between Webb's and Taylor's evidence. Webb's evidence was not logically inconsistent perhaps with the case that Mr Greenwood had wounded Taylor because he did not claim to have observed the early part of the intrusion. But there was this conflict as to whether anyone other than Mr Greenwood had attacked Taylor. Taylor's evidence that he had the appellant, Mr Greenwood, in his sight throughout was inconsistent with the prosecution case of the appellant's assault on Webb.
15.
The Recorder did not, as is perhaps suggested, fail to put the defendant's case but he did omit reference to or explanation of these quite significant conflicts and discrepancies as we think he should have done. Mr Durr submits that in a fast moving scene inconsistencies such as these may not have been as significant as they now appear. He emphasises the general directions which the Recorder properly gave to the jury to which we have alluded. Mr Goodman, for his part, submits not only that the Recorder should have referred to and emphasised by way of explanation these inconsistencies but that the core of the inconsistencies went to support the appellant's own account, that all he had done that evening was to go to try to restrain a large man who was attacking Mr Taylor.
16.
We have to judge, in these circumstances, whether the summing-up, not having contained what, in our judgment, it should have done, the convictions were nevertheless safe. In our judgment, they were not safe and for these reasons the appeal against conviction is allowed.
17.
MR GOODMAN: A retrial I imagine is in the Crown's mind.
18.
SIR ANTHONY MAY: Mr Durr what about a retrial?
19.
MR DURR: We would seek a retrial on the two remaining allegations. There having been nothing deficient about the way the Crown had presented the case.
20.
SIR ANTHONY MAY: Do you want to say anything about that?
21.
MR GOODMAN: Certainly I submit it is not in the public interest that a retrial take place. This is a matter that was heard in 2007. Mr Greenwood has been certainly in prison since November but, of course, I am in the hands of the Crown as to their next move. Given the indication that I have now heard from Mr Durr, I would seek immediate bail. Mr Greenwood was on bail for 10 months pending his trial.
22.
SIR ANTHONY MAY: Please remind us, he was sentenced on what date?
23.
MR GOODMAN: The 24th October, yes I am grateful. But in fact had been -- although he had been on bail throughout the proceedings, on the date of conviction, which was some 1 month earlier in September he was remanded in custody from that day forth.
24.
SIR ANTHONY MAY: He had 28 days on remand I think.
25.
MR GOODMAN: Which was in fact the period between conviction and sentence.
26.
SIR ANTHONY MAY: He has been in custody for upwards of 4 months plus the 28 days.
27.
MR GOODMAN: Yes.
28.
SIR ANTHONY MAY: Do you want to say any more?
29.
MR GOODMAN: No thank you.
(The Bench Conferred)
30.
SIR ANTHONY MAY: The appeal is allowed. The conviction is quashed. After due consideration, we do not direct a retrial. The main reason for reaching that conclusion is because the appellant has spent the equivalent of something of the order of 10 months in custody already. Thank you very much.