Bradley, R. v

LORD JUSTICE MOSES: This is an appeal with leave of the single judge, Silber J, against a conviction of assault occasioning actual bodily harm. We were surprised to hear trotted out yet again those authorities that purport to give guidance on the circumstances in which a judge can properly withdraw a case from the jury. This is not a case in which it is appropriate yet again to refer to those authorities, stemming from the decision of this court in Galbraith, all of which are designed to demonstrate that it is open to a judge to withdraw from the jury a case where the evidence is such that no reasonable jury, properly directed, could convict. But apart from stating that principle, there is nothing else that need be said. No guidance is to be obtained from other cases where judges have taken the view that it is proper to withdraw the case from the jury or, alternatively, not appropriate to do so.

One other principle is however fundamental to the way the criminal justice system tries cases and that is that credibility is a matter for the jury and not for the judge. That principle is amply demonstrated in this case where, due to the skill of Mr Harounoff in defending his client, the evidence showed that the complainant was lying, lying not just to the police but also to the jury, in an important respect as to the events which led up to the assault of which the appellant was convicted. He was convicted in July 2009 at Guildford Crown Court and sentenced one-and-a-half months later to 10 months' imprisonment.

The dispute between him and the lady with whom he had been living, Carol Ann Delaney, over a period of 5 years, concerned his wish to leave the home. It is quite apparent now that she was most reluctant that he should do so and this had led to a dispute the night before. Her account, however, as to the events of the night before and the early morning was undoubtedly false. She had told the police that she and the defendant had spent the evening of 29th December 2008 together at home. They had their 3 year old daughter there as well. They had been drinking vodka and beer together in the evening until she went to bed, at about 2.30 the following morning, 30th December.

The following morning, she said the defendant was downstairs and then became aggressive, calling her "a lazy, fat slob" and stormed upstairs to get his things, and when she spoke to him, as he was packing his bag, had followed her into the bathroom, hit her in the face and head and she had stumbled backwards into the bath, striking her left arm and cutting her head.

She telephoned her mother. That is shown to be at 8.23 in the morning, an important time. The defendant, according to her, grabbed the phone and she told him she was speaking to her mother. The defendant then grabbed the handset, pretended to call the police, alleging that she had pulled a knife on him. He then moved the computer. She went to the front door and saw her mother, who by that time had arrived, parking across the road. As the defendant was removing his things, according to her, he turned and punched her in the face, so that she felt her nose "exploding" and it began to bleed. He then hit her a second time on the left cheek, got into his van and threatened to kill her and her mother as he drove off.

In her evidence, confirming what she had told the police, she said she was not drunk and said that the defendant had not been saying that he was going to leave her. But she denied in cross-examination that the injury to her face was a result of any accident.

Mr Harounoff had ample material on which to demonstrate that her description of the events leading up to her allegation of assault was wholly false and that she had persistently lied in that account. He had material to show that she had been telephoning and sending text messages, until 10.20 pm on the evening before, ample demonstration that he was no longer in the house and that she had resumed telephoning between 4.18 to 6.04 am the following morning.

Her explanation for this was that he must have gone out once she had gone to bed. She was telephoning him because he had gone out in her car and she said that she had not put that in her statement to the police because she thought that was not relevant. In short, she had persisted in her lies, even while she was giving evidence on oath to the jury.

There was further evidence on which the defence could rely, namely that it could be shown that the defendant had visited cash machines withdrawing money at some time around midnight of the 29th/30th December because the record showed two cash withdrawals. There was, however, other evidence. But in relation to that other evidence Mr Harounoff is perfectly correct in saying that it exposed inconsistencies.

The mother of the complainant, it will be recalled, had been telephoned, at 8.23 am and had driven to her daughter's house. The journey took about 10 minutes. She said she witnessed an assault. She saw her daughter had a bruise on one side of her head. They spoke to each other, but the defendant came out of the house, passed her daughter and then struck her with the back of his hand, not with a clenched fist, an upward blow and it was that which caused her nose to bleed.

The difficulty with that evidence, quite apart from the fact that it did not support her own daughter's account of a punch causing the nose "to explode" was the evidence of the officer, Police Constable Beavley who arrived. She said she arrived and confirmed this when cross-examined at 8.25 am but 2 minutes after the call to the mother and thus at a time, if the evidence as to the length of the journey the mother would have to take was accurate, before the mother could have arrived. She saw the complainant crying and her nose bleeding and she saw that the mother was there. Both could not be right. But the officer's evidence was nevertheless capable of confirming that the mother was there, and by the time the officer had arrived, such assaults as may have occurred had already taken place. After all the nose was seen to be bleeding.

That was the evidence, apart from other evidence as to drops of blood on the appellant's shoes and the signs of blood in the house with which the judge was faced when Mr Harounoff came to make his submission that the case should be withdrawn from the jury.

That other evidence is, however, of significance. It is the evidence of the scenes of crime, which showed there was a blood mark on the bathroom wall and blood on the front door.

The judge declined to withdraw the case from the jury. In our judgment, he was right to take that view. True it is that the evidence of the main witness was shown to be false in a material respect and that the jury could, on that basis, reach no other reasonable conclusion than that the complainant had lied, not only to the police but also to them, about the events leading up to the assault. But after all, as Lucas teaches, lies may be given for many reasons and not just because the whole of the account given by the witness is false. A witness, be it for the prosecution or for the defence may tell significant and important lies but nevertheless, not be lying throughout his or her account. Since the prosecution have to prove the case, a witness shown to be lying in an important respect is unlikely, although not inevitably, going to be insufficient to prove the case against the defendant, whatever the charge. But in this case, at the close of the prosecution case, the evidence of the complainant was not the only evidence in the case. There was, incontrovertible evidence that did not depend upon a witnesses' credibility, or ability to observe or ability to time events, namely the blood in the bathroom wall, the different position of the injuries on the complainant, the bridge of the nose, the side of the head, above the cheekbone and on the inside of the left arm.

On any view blood had been spread as a result of injuries to the complainant. In those circumstances, in our view, it would have been quite wrong for the judge to allow this submission. Cases of violence that take far longer to recount in court than they take to occur will inevitably give rise to discrepancies, inconsistencies, sometimes those which can never be explained. That is why we have juries to sort out those inconsistencies to look and see whether there is any explanation for lies that witnesses, be they for the prosecution or defence, may tell and whether nonetheless, there is a sufficient basis upon which a conclusion of guilt can be reached.

The defendant at the close of the prosecution case gave evidence explaining how it was that the complainant had suffered her injury, namely that drunk as she was, consuming, as she must have done, two-thirds of a bottle of vodka, as well as lager, she had tripped and stumbled and caused the injury to herself in her anger and rage that he was leaving.

In considering this appeal, we have to look at the evidence as it was at the close of the prosecution case, but it is appropriate for us, when exercising our jurisdiction to see whether the conviction was safe, in addition to the basis of this appeal, to consider whether his evidence, taken with the lies that the complainant told, leads to a conclusion that the verdict was unsafe. We do not think it was. We think the jury was perfectly entitled to disbelieve him and rely upon those parts of evidence on which did not wholly depend on the complainant. In those circumstances, this appeal is dismissed.