Case No: 200402371 C1 
Neutral Citation Number: [2004] EWCA Crim 2844
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Friday, 22nd October 2004
 
B E F O R E:

LORD JUSTICE SCOTT BAKER 

MR JUSTICE FORBES 
 
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a judge of the CACD) 

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R E G I N A 

-v- 

JUSTIN HAYES
 
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MR S PATTERSON appeared on behalf of the APPELLANT
MR M SELFE appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE SCOTT BAKER:  On 25th March of this year, in the Crown Court at Salisbury, before His Honour Judge Pryor QC, this appellant was convicted, by a majority of 10 to 2, of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against The Person Act 1861.  
2.	On 17th May of this year the same judge sentenced the appellant to 2 years' imprisonment.  We are bound to say that each member of this court considers that, on its face, 2 years' imprisonment is a surprisingly low sentence for a case of kicking or stamping to the head.
3.	We do not, of course, have to consider an appeal or a reference with regard to the sentence and we are not aware of the mitigation that was put before the judge. 
4.	The appellant appeals against conviction by a certificate of the trial judge on the ground that:
"There was a serious question as to whether I was right to allow cross-examination of the Defendant about a letter written by his Solicitor offering to plead guilty to actual bodily harm."
5.	The appellant has added a further ground of appeal in that he seeks leave to call Stephanie McPhie, whose evidence was not called at the trial, and which he submits would demonstrate the unsafety of the conviction.  This ground, however, requires leave to appeal to be granted before it can be advanced.  
6.	Turning then to the facts of the case.  On 1st August 2003 the victim, David Barry, was socialising in the Bell at Amesbury.  He was drunk.  He had had about 7 pints and he could remember virtually nothing after he left the public house until he woke up in hospital.  He suffered a four inch laceration to the left side of his forehead and grazing.  His left eye was blackened and there was a one inch graze below that eye.  He had a bruised and swollen jaw, bruising and grazing to his elbows, and a dead (meaning numbed) right thigh.  The prosecution case was that the injuries were caused by kicking or stamping on the part of the appellant.
7.	The defence was that there had been an incident between the two men but that the appellant had not caused the injuries.  The victim had fallen over and must have hurt his head in the fall.
8.	There were two eye witnesses, Terry McLachlan and Michael Irwin.  They had been to Salisbury with the intention of seeing a film that evening, but they never got there.  In the event they spent the evening drinking beer instead; up to about 9 bottles of Becks each.  They were walking to the toilets in the car park at about half past 10 when they saw the victim apparently arguing with Stephanie McPhie about, amongst other things, the age of the victim's daughter.  McPhie was pushing him with her hands and he appeared to be getting annoyed.  
9.	The appellant had a bottle in his hand and asked what was happening.  Then the appellant started chasing the victim, throwing a bottle at him which smashed on the ground, and the next moment the victim was on his knees, holding on to a bar on a ramp in the car park.  Then he was lying on the floor with, according to the Crown's case, the appellant kicking or stamping on him six or seven times.  At one point he appeared to be standing on the victim's head.  The appellant then ran back to the car park and someone rang for an ambulance.  
10.	After the event there was evidence that the appellant was telling people that he had stamped on the victim's face four or five times as if he was proud of it.  Doctor Heppell said that the injury was consistent with kicking or stamping with a reasonable degree of force.  There was grass, twigs and grit under the flap of skin at the site of the serious injury, which in his view must have been the result of a kick or a stamp.  
11.	The appellant was interviewed on 5th August.  He referred to an incident between the victim and a girl.  When he appeared to be about to hit her the appellant intervened to try and stop him, but he got punched on the nose which bled.  The victim ran away but ran into something and fell over.  A couple of seconds later the appellant said that he was bending over the victim and he said that he then turned and walked.  As he did so he flicked his foot at him and called him a "prick".
12.	He was asked in interview if his foot connected and he said this, "Yeah, yeah.  I reckon in the sort of upper thigh, buttock, maybe sort of back area.  Sort of lower back, upper thigh sort of area."  Asked how hard it was he said, "Basically my foot travelled about 6" off the floor, it wasn't a swing, I didn't pull my leg back and kick him, it wasn't a kick it was more of a poke, my foot was on the floor, I just went like that, 'Prick'".  Asked how much impact there was he replied, "Maybe enough to put a little bruise on you, but that's about it."  Asked about his intention he said, "Oh I was frustrated by where I'd been banged on the nose and I was bleeding everywhere.  I don't know whether you've ever been smacked in the nose before, you don't sort of say thanks and shake someone's hand for that do you, it sort of gets to you a little bit."
13.	At the trial the appellant gave evidence in his own defence along the following lines.  He had passed the victim, whom he had not known before that night, earlier in the evening, and the victim was aggressive, drunk and staggering.  The appellant himself had only drunk a small quarter litre bottle of beer.  He heard shouting and argument and saw a man and a girl arguing and thought he better keep his eye on the situation.  He walked towards him though he accepted that the situation was none of his business.  He saw the man grab the girl by the arm and go to punch her.  It was at this point that he recognised Stephanie McPhie.  He put his shoulder in between them saying, "No need for that mate", and the victim punched him in the face and immediately started running.  
14.	Without thinking about what he was doing he dropped the bottle he was holding and ran after him.  He got halfway down the ramp and saw the victim flipping over and heard a sound as if he had been winded.  He accepted that he flicked the body with his boot in the upper thigh or midriff area but said he then walked away.  He denied any kicking.
15.	The grounds of appeal in respect of which the certificate was given concern an application made by the Crown in cross-examination.  The Crown sought leave to cross-examine the appellant about a letter his solicitors had written to the prosecution before the trial indicating that he would plead to assault occasioning actual bodily harm to the body but not the head of the victim.
16.	We pause to observe that the offer of such a plea was entirely consistent with what the appellant had said when he was interviewed by the police.  We have just read the relevant passages from his interview.  Also, it is hardly surprising that the Crown were not interested in accepting a plea to assault occasioning actual bodily harm on the basis tendered because their case was that the appellant had kicked or stamped on the victim's head with the intention of causing him really serious injury, as the jury, in the event, found that he had.  
17.	When Mr Selfe, who appeared in the court below for the Crown, as he has appeared before us, cross-examined the appellant, he told Mr Selfe that he did not injure the victim.  His interview answers were put to him and he continued to insist that he did not see any injury to the victim.  Mr Selfe wished to put the solicitors' letter to the appellant.  After argument the judge allowed him to do so.  We have today been provided with the complete letter.  There was, however, one passage only in which Mr Selfe was interested.  It reads as follows: 
"Our client is therefore prepared to accept that he has caused actual bodily harm and is prepared to plead guilty to an offence contrary to Sec. 47 of the Offences against the Person Act 1861.  We would be grateful if you could inform us as to whether or not this is acceptable to the Crown."
18.	The appellant's solicitors were the appellant's agents.  They had ostensible authority to write such a letter and no competent solicitors would write such a letter without instructions to do so.  Mr Patterson has not for a moment suggested that the solicitors were not acting entirely properly in writing this letter.  The first question, in our judgment, is whether the letter was admissible.  It plainly was to show that the appellant had said something that was inconsistent with the evidence that he had given.  It was therefore admissible provided the judge concluded that there was no countervailing reason for not admitting it.
19.	The letter, in our judgment, comes into just the same category of previous inconsistent statement as was what the appellant had said when he was interviewed.  He was cross-examined by Mr Selfe about that before.  But as if to emphasise the point, Mr Selfe wished to put the letter to him.  The letter was relevant to the appellant's credibility.  
20.	The matter fell, eventually, to be considered by the judge because Mr Patterson does not suggest that the letter was not, on its face, admissible under the provisions of section 78 of PACE.  The judge was referred to section 78 and we pick it up at page 8 of the transcript of the argument.  The judge read it out:
"'In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.'"
21.	The judge considered that balancing exercise and decided that the evidence should be admitted.  Mr Patterson submits that the judge was wrong in reaching that conclusion, that it was, in the circumstances, unfair to admit the evidence, and the judge should have excluded it.  When pressed on this point Mr Patterson was not really able to draw the court's attention to any way in which the admission of the evidence would be unfair to the defendant.  It worked to his disadvantage certainly because it emphasised his lack of credibility.  
22.	Mr Patterson's argument was really driven back to this: that pre-trial negotiations about possible pleas of guilty often take place between the defence and the Crown, that such negotiations should not be discouraged by the court by taking the step of allowing something in those negotiations to be admitted in evidence, and that there is a general understanding that, for example, discussions between counsel about a possible plea would not be referred to before the jury at the trial.
23.	In our judgment it is necessary to concentrate on the particular facts and circumstances of this case.  We ask ourselves the question, first of all, is there any reason, in principle, why the letter should not be put to the appellant in cross-examination?  The answer is that there is not because it was relevant to his credibility in just the same way that it may be relevant to a defendant's credibility to cross-examine him about details in his alibi notice when his evidence at the trial has turned out to be different.  Likewise, there is no objection, in principle, to a defendant being cross-examined on what is contained in his defence statement when it becomes relevant to an issue at the trial.  We cannot see that there was any unfairness to the defendant in the admission of this evidence in this case.  
24.	The appellant had told the police that he had kicked the victim and caused some injury in his leg region.  That was entirely consistent with a plea of guilty to assault occasioning actual bodily harm which was what his solicitors offered on his behalf and on his instructions.  When he backtracked in his evidence the Crown was entitled to draw the jury's attention to what he had said before.
25.	In our view the judge was right to admit cross-examination on the letter.  Because the letter itself never went before the jury as such as it was not adduced as part of the evidence.  It was simply that the defendant was cross-examined upon it.
26.	In any event, the cross-examination on the solicitors' letter was, in our judgment, of only marginal importance to the conviction because the prosecution had drawn the jury's attention to what had already been said by the appellant in the course of his interview.
27.	Mr Patterson also takes the point that the jury was particularly interested in this letter because they asked a question about it after they had retired.  The question for the jury was, "Please can we have a copy of the letter from Justin Hayes previous solicitors to find out what charge he was willing to plead guilty to".  The judge had already made it clear that the letter was not part of the evidence and that therefore the jury could not see it, but he did remind them of the cross-examination on this point and gave the jury a very clear direction as to the limited relevance that it had in the trial because, of course, what the jury had to decide was whether the defendant was responsible for kicking or stamping on the victim's head.
28.	We therefore have come to the conclusion that there is no substance in the ground of appeal in respect of which the certificate was given. 
29.	The second ground on which leave has thus far not been given relates to the evidence of Stephanie McPhie, who was not called at the trial, and whom Mr Patterson now seeks leave to call.  The position with regard to her was this: shortly after the incident at which she had been present, according to a later video recorded interview, she said this:
"On Friday 1st August I went to a friend's house in Solstice Rise, that is the home address of Laura Lyndley.  I got there at about 10.30pm and left 1.30am on Saturday 2nd August.  After leaving I came straight home, which is just around the corner.  I am not aware of seeing any incident on my way home.  I walked home on my own, arriving home at about 01.35am.  I am prepared to attend court if necessary."
30.	On 27th July of this year she made a further statement in which she said this:
"At the time of the incident I was living with my Nan at 1 Bramley Way, Amesbury.
"At about 10.30pm on Friday 1 August I was at a location near the toilets in Amesbury car park talking to friends.  I witnessed an incident involving Justin Hayes and another man.
"I was approached by the Police to ask if I would make a statement and agreed to do so when I had discussed the matter with my Nan.  I telephoned the Police shortly afterwards to make the necessary arrangements.  Unfortunately the Police arrived at my house a few minutes after I got home which not only annoyed me but my Nan also.  For that reason alone I foolishly made a statement dated 5 August 2003 (copy enclosed) in effect stating I knew nothing about the incident involving Justin Hayes.  [That is the statement we have just read.]
"A day or so later I telephoned the Police informing them I wished to change my statement but it was not until 6 October that I was again interviewed by the Police on video and gave a full account of what I saw in Amesbury car park on Friday 1 August and was prepared to attend Court if required.  I also explained in that same interview at 20.15 why I had not told the truth in my earlier statement.  I believe that the explanation on the transcript is a full and accurate account.
"I attended Court when Justin's trial started at Salisbury fully prepared to stand up and give evidence on Justin's behalf and was also under no illusions that I could have been heavily criticised for making my first statement and I was also told that there was a chance that I could have been prosecuted for perjury.
"Despite this I was and am still prepared to give evidence on Justin's behalf as set out in the transcript of my interview dated 6 October 2003 and I should add that I do recall at Salisbury Crown Court Justin's Barrister allowed me to use his mobile telephone to speak to my Mum and ask her opinion as to whether I should give evidence or not.  She agreed that I should." 
31.	We have before the court, and have read carefully, the transcript of the video recording that she made on 6th October which is the evidence that is sought to be adduced.  No further or detailed statement has been taken from the girl.  It is unnecessary for us to read out the detail of that statement.  She gives her account of the events with which the case is concerned.  She saw the earlier part of the incident and describes there what she says happened, but she gives no account of the later part of the incident which is when the Crown say that the serious assault was committed by the appellant.  
32.	Therefore, on its face, her evidence is neutral as to the critical part of events, but the appellant submits that what she says about the earlier part of events may be of benefit to the appellant's case.  
33.	Section 23(2) of the Criminal Appeal Act 1968 provides that in considering whether to receive any further evidence the court has to have regard, in particular, to four matters: (1) whether the evidence appears to the court to be capable of belief; (2) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (3) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (4) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.
34.	There is no problem about the third of the criteria.  The evidence clearly would have been admissible in the proceedings.  There are difficulties, however, about the other three criteria.  As to the first of the criteria, whether the evidence appears to the court to be capable of belief, the witness has now made two statements which completely conflict with each other; the first in witness statement form, the second in the form of the video recorded interview.  The witness gives reasons why the first statement should be disbelieved and the account in the video interview should be believed.  
35.	We put it this way, that on the presently available information there are serious question marks about whether the evidence appears to be capable of belief.  The answer to that question would only be resolved one way or the other following listening to the witness's evidence.
36.	The second question is whether the evidence that the witness would give may afford any ground for allowing the appeal.  Again, we have serious doubts about this because she does not give an eye witness account as to the crucial part of the incident.  She speaks of the earlier part of the incident and it may be paints a picture of the victim being more of an aggressor than might have been the case at the trial.  Secondly, she is silent as to the evidence that the appellant was bragging about having stamped on or kicked the victim when he was seen after the incident.  No doubt had she given evidence she would have been cross-examined about that, and it is difficult to speculate on what her answers might have been.
37.	Suffice it to say that we have very, very serious doubts that any evidence that she might have given to us could afford any ground for allowing the appeal.
38.	The final hurdle to the admissibility of this evidence is whether there is a reasonable explanation for the failure to adduce the evidence at the trial.  In our judgment this is the hurdle which the appellant is unable to overcome however favourably one interprets the known facts towards him.
39.	Our attention has been drawn to the recent decision of this court in R v Hampton and Brown [2004] EWCA Crim 2139 and we were referred in particular to the very last paragraph of the judgment of Hooper LJ where he refers to two lessons being drawn from the case.  It is the first that is the important one for present purposes: 
"... if a defendant is in a position to call a witness on his behalf at his trial and he makes a deliberate and informed decision not to do so, he and his advisers should not expect this court to allow an appeal on the basis of fresh evidence." 
40.	The witness McPhie was available at the trial.  She was able to give evidence and indeed she was willing to give evidence.  The position is clear from her statement of 27th July this year which we have read, and it is to be noted that the barrister who was then acting for the appellant, not Mr Patterson, allowed her to use his mobile telephone to speak to her mother to ascertain her opinion as to whether she should give evidence.  Her mother agreed that she should.
41.	We have been provided with a copy of a certificate dated 24th March of this year, the day of the trial, and the moment when the decision was taken by the defence not to call Stephanie McPhie.  It reads in these terms:
"I Justin Hayes have instructed my counsel that I do not wish Stephanie McPhee to give evidence on my behalf as this would put her at risk of prosecution."
42.	That cryptic statement raises a number of questions.  In the first place McPhie was already under some theoretical risk of prosecution it would seem, having given two entirely conflicting and inconsistent accounts to the police.  It is not clear to what extent that risk might have been increased in the event that she did give evidence.  On the face of it, this court considers that such risk as she was under was remote and was unlikely to be significantly increased had she gone into the witness box to give evidence, but that is not a matter on which this court should really speculate.  
43.	What is clear is that the person who is best able to assist the court as to the reasons why the defendant did not call Stephanie McPhie at the trial, other than the defendant himself, is his then counsel.  Although we raised this point with Mr Patterson more than once during the course of argument, there has been no waiver of privilege so that the court might be apprised of what counsel had to say, indeed not even a request for an adjournment in order that steps could be taken, albeit at the 59th minute of the 11th hour, to waive privilege and obtain the necessary information from him.
44.	It seems to us, in our experience of the criminal process, that it might have been very detrimental to the defence to have called Stephanie McPhie on the defendant's behalf to give evidence at the trial.  She would have been vigorously cross-examined, no doubt, about her reasons for the first statement to the police.  It would probably have been suggested that she was anxious to cover up for the defendant whom she knew, and that even the second statement did not contain the whole truth about what she had seen at the time of the assault.
45.	In our judgment the fourth of the four criteria, reasonable explanation for failure to adduce the evidence at the time, has not been met.  In these circumstances we are not prepared to give leave to appeal on this second ground.  The appeal against conviction therefore fails.