Davies, R v

Lord Justice Moses: This is an appeal against a conviction for a serious offence of assault occasioning actual bodily harm and possession of an offensive weapon, a knife, of which this woman, aged 33, was convicted. Her application, which related to the offence of possession of the knife and a misdirection in the summing-up, was refused, but she renews it today through Mr Rowland. She was given permission to appeal on the basis that three important witnesses, the victim and two other eye witnesses of the attack, were allowed to have their evidence read pursuant to section 116 of the Criminal Justice Act 2003 ("the 2003 Act"). The essential ground of that appeal relates to the adequacy of the evidence of fear for the purposes of the ruling under section 116.

The facts disclose how serious this case was, but also how significant were the three witnesses, whose evidence was read, in proving the case against her. The incident had started on the streets of Winchester where this appellant felt that she had not been treated with proper respect. According to the victim (whose statement was read), he, his girlfriend and her sister (that is Suleyman, Miles and Farwell) were walking down the high street when the applicant shouted a request for a cigarette paper and then a cigarette. The victim said, "Not for you". The applicant was, not surprisingly, offended at this, ran towards him shouting abuse, and then, having pushed him, took a small knife from under her under garment, waved the knife at him and then stabbed him. She then grabbed his girlfriend, put the knife to her throat and demanded that the girlfriend tell her the victim's name. The three escaped. The appellant followed and pushed the sister of the girlfriend up against a shop window, putting the knife to her throat. After she had let go, she was alleged to have chased the victim, again trying to stab him.

The victim, Mr Suleyman, having driven to one of the girls' houses, called the police. He did have injuries consistent with a stabbing. The other two girls, whose statements were read, gave similar evidence. They were not the only witnesses. There were others who witnessed the aggressive behaviour of the appellant, and, in particular, one of them gave evidence that she was holding a knife, although she only saw the blade and not the handle. There were other witnesses who gave similar evidence of her possession of the knife.

The appellant, to the police officer who saw her at 9.15 on that evening, appeared drunk, but the applicant told that police officer that the man Suleyman had kicked her in the crotch.

The evidence that the applicant gave was that she had seen the three, whose evidence was read, recognised two of the girls, but, having asked them for a cigarette, the man had started the attack by kicking her in her private parts. She was very cross at this, wanted to punch him, but had never had a knife. All that she held in her clenched fist was a silver cigarette lighter. She admitted that she had chased after the man until he got into the car, that she had punched him in the left shoulder, but she denied that she had ever stabbed him. Somewhat tellingly, she admitted she had put her clothes in the washing machine, but explained that was due to the fact that a dog had defecated and the consequences had got on her trainer and trousers.

The judge considered an application that Mustafa Suleyman, Elouise Miles and Bonnie Farwell, the three most involved in the incident, should have their evidence read pursuant to section 116(2)(e) of the 2003 Act. The judge in giving his ruling referred to evidence originally given by Bonnie Farwell, the girlfriend of the victim, saying:

Suleyman in his original statement had said:

In later statements all three had made clear that they did not wish to give evidence in court. Suleyman had said:

Bonnie Farwell made a further statement and said she did not want any further involvement in the case:

Her sister said:

Based upon that evidence the judge gave a full ruling, acceding to the application pursuant to section 116. During the course of that ruling he referred to the possibility of giving evidence behind a screen, or through video link, and continued that his finding as to fear made that impracticable, saying:

The first point taken by Mr Rowland in his moderate but excellent submissions on behalf of this appellant is that at the outset of the case, as this ruling was, there was insufficient evidence on which the judge could be satisfied of the matters set out in section 116(2)(e). There was, in short, insufficient evidence of fear. He rightly points out that when the ruling was made at the beginning of the case, the judge can have had no particular feel for the case. The matter was strenuously contested. It was all too easy for witnesses reluctant to go to the bother of coming to court to say that they were frightened. In those circumstances, it was incumbent upon the judge properly to scrutinise that which they asserted.

In seeking to make good that submission, he drew attention to section 116(4)(c) relating to special measures. No attempts were made to see whether the fears of these witnesses could be allayed by giving evidence through video link. Indeed, he said it was incumbent upon the judge at least to assess their assertions of fear by having those examined by means of video link. In support of that proposition he relied upon the R v H, W and M [2001] Crim LR 815, particularly in the note of the judgment at page 816 which advised that a court should test the oral testimony of fear through video link or tape recording particularly as to the reasons for the fear. In the instant case he pointed out there was no evidence of any past history to justify the fears which the witnesses expressed.

We reject these submissions. In our judgment, the judge was perfectly entitled to reach a conclusion as to the genuineness of the witnesses' fears on the basis of the evidence to which we have referred. It must always be recalled that fear is to be widely construed (see section 116(3)) and that it was the purpose of this part of the 2003 Act to alter that which had previously been the law under section 23 of the Criminal Justice Act 1988. The law previously referred to, particularly in R v H, is no longer that which should guide the courts under the new regime. Indeed, courts are ill-advised to seek to test the basis of fear by calling witnesses before them, since that may undermine the very thing that section 116 was designed to avoid.

Of course, judges must be astute not to skew a fair trial by a too ready acceptance of assertions of fear since it is all too easy for witnesses to avoid the inconvenience and anxiety of a trial by saying they do not want to come. But having said that, in the instant case there was ample evidence to justify the course that the judge took. In those circumstances, there is no basis for the suggestion that he was wrong to do so. Normally a judge will have a much better feel of the truth or otherwise of the assertions of fear than this court could ever do, but we accept that the judge made his ruling at the outset and in those circumstances based it purely upon the written assertions of the witnesses. Had we thought he was plainly wrong, then there would have been merit in this appeal, but, on the contrary, we take the view that he was right.

The other point raised on behalf of this appellant relates to the summing-up in relation to offensive weapon. The real issue, as we have already identified it, is whether she was carrying a knife at all. But Mr Rowland submits that the summing-up was defective because it did not properly remind the jury that the jury could not convict unless it was sure that, before the use of the knife, the applicant had an intent to cause injury. As was said in R v Humphreys [1977] Crim LR 225, following the well-known case of Ohlson and Hylton [1975] 2 All ER 490, the mere use of such a weapon ad hoc would be insufficient to prove the necessary intent for establishing the offence of carrying an offensive weapon. In the summing-up the judge said that if the applicant had this knife and intended to do some injury to anybody else, then the knife becomes an offensive weapon, but, on the contrary, if she did not so intend to use it, or may not have done, then it was not an offensive weapon. In our judgment, the judge was not required to say anything further on the facts of the instant case.

In those circumstances, we think the single judge was right to refuse leave and the application is refused.