Delaney, R. v [2010] EWCA Crim 105

Case No 200904414/D1[2010] EWCA Crim 105
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19th January 2010
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE BENNETT
SIR CHRISTOPHER HOLLAND
Between
R E G I N ACrownv
Between
ROBERT ERNEST DELANEY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss J Levinson appeared for AppellantMr R Meikle appeared for CrownJ U D G M E N T

LORD JUSTICE PILL:

[1]On 31st July 2009 in the Crown Court at Woolwich before His Honour Judge Shorrock and a jury, Robert Ernest Delaney was convicted of unlawful wounding (count 2), the conviction putting him in breach of a conditional discharge imposed for a period of 2 years at Woolwich Magistrates' Court on 10th May 2007 in respect of using threatening, abusive or insulting words or disorderly behaviour, likely to cause harassment, alarm or distress. On 31st July 2009 Delaney was sentenced to 2 years' imprisonment in respect of count 2 and 14 days' imprisonment concurrent in respect of the breach of conditional discharge, so that the total sentence was one of 2 years' imprisonment. He was acquitted on count 1, wounding with intent and on count 3, common assault. He appeals against conviction by leave of the single judge.[2]On the evening of 12th October 2008, in the Duke public house, the appellant was alleged to have struck Aaron Wensley in the face (count 3). He was then struck by Daniel Tabrett in the face. The appellant then struck Tabrett, the prosecution alleged, with a glass, cutting his face close to his right eye. We have seen photographs of the wound.[3]The defence case was that Tabrett had attacked the appellant without provocation or warning. Tabrett was a formidable looking man. The appellant had acted out of fear and was defending himself with the blow which caused the wound. He denied the assault on Wensley (count 3). He only pushed him out of the way. Tabrett's evidence was that he learned that the appellant and Wensley had a disagreement and that he told the appellant's cousin to calm him down. The cousin took him outside. Tabrett had had 6 to 7 pints of beer that evening.[4]When the appellant came back into the public house, Tabrett's evidence was that the appellant said to him:
"Do you want some as well?"
He was carrying a glass. He, Tabrett, said that he panicked at that and hit the appellant twice in the face. The appellant fell back onto a table. When he stood up, he picked up another glass, swung his left arm and hit Tabrett in the face with it. Wensley's evidence was that the disagreement had started when the appellant approached him and said:
"You've been looking at me all night"
. Wensley denied that whereupon the appellant hit him once on the cheek.[5]Other witnesses were called as to what happened. Michelle Smith said that she heard the appellant say to Tabrett: "Do you want some as well?" though she had not mentioned that in her police statement. She saw the appellant punch Tabrett. Then he "swiped up" a pint glass from the bar and struck Tabrett with it. Jay Meloy saw the appellant and Tabrett, as he put it, scuffling. He stood between them. The appellant approached again and quickly swung a glass around the side of his head and into Tabrett's face.[6]Laura Trevillion thought that the appellant had picked up the glass after he had been knocked back by Tabrett. Ruwanthi Johnson also said that the appellant had picked up the glass from the bar after the initial altercation.[7]The appellant's evidence was that he had drunk 8 to 9 pints of cider. He had said to Wensley:
"Why are you staring at me?"
Wensley replied:
"Why would I want to be staring at you?" which the appellant regarded as provocative and pushed him out of the way. That incident was the occasion for count 3 on which the jury acquitted the appellant of common assault. The appellant denied saying to Tabrett: "
Do you want some as well?" He said he found two or three men in his face, including Tabrett, who punched him twice. He fell backwards, got to his feet and swiped his left hand in which he was holding a glass, to get away anyone who wanted to attack him. It was an instinctive decision. After that he ran home.[8]His defence was that he acted in self-defence as far as Tabrett was concerned.[9]The submission made by Miss Levinson on behalf of the appellant is that the judge wrongly declined to allow in evidence photographs of Tabrett, showing him in a boxer's stance. Tabrett displayed in a Facebook available to members of the public along with other material, photographs of him in a boxing stance, displayed for the world to see. In summary, Miss Levinson's submission is that, had the jury seen those photographs, they would have been in a better position to assess the threat under which the appellant thought himself to be. Their verdict may well have been different and the verdict reached in the absence of admission of that evidence is unsafe. Miss Levinson relies on the acquittals on counts 1 and 3. She has referred us to the judge's ruling on admissibility of material. A number of matters were sought to be put in and in fact eight of nine matters were allowed in. But Miss Levinson submits and of course the court accepts this is not a numerical exercise that if the one not allowed in is of the significance that counsel claims it to be, then we must go on the consider the effect of it.[10]Referring to the skeleton argument of Miss Levinson on the admissibility issue,

the judge stated:

"In my judgment, all the matters referred to paragraph 2, save for the matter that appears at (vii) [the boxing photographs] which I have already commented upon, I do not think that the photographs that appear in Mr Tabrett adopting a boxer's add anything very much to the items covered in 3 to 7 given it was plain that he was clothed at the time and not, on any view, adopting the stance that he is shown as adopting in those photographs. Submitting them has a potentially much more prejudicial than probative value. So, with the exception of those images of Mr Tabrett in a boxer's stance, I rule all the other matters are admissible and Ms Levinson may cross-examine the witness in relation to them for the reasons that I have already described."
[11]Counsel submits that the test applied by the judge was not the correct one. Section 100 of the Criminal Justice Act 2003 provides at subsection (1):
"In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if— (a) it is important explanatory evidence. (b) it has substantial probative value in relation to a matter which— (i) is a matter in issue in the proceedings, and. (ii) is of substantial importance in the context of the case as a whole..."
[12]We refer to matters which the judge allowed in evidence and which were the subject of cross-examination of Tabrett on the appellant's behalf. The first is that he had a previous conviction for assault occasioning actual bodily harm. The other matters have been summarised, by reference to the admissible parts of the Facebook, in counsel's advice. On that Facebook appeared the question:
"What would you most likely get arrested for? The answer given by Tabrett was: "
Assault and battery". Tabrett made the comment "going to court Monday so hopefully that tosser will go down. If not I'll deal with the fucking cunt myself". There was a reference to a body looking for more fighters. There was a message to Tabrett from someone else:
"Dan, you know we have a company called Southside Boxing. If you want to fight please feel free to drop us an email and we can match you up any time."
The witness put on his e mail:
"What's the difference between you and me? I do what I want and you do what you're told."
He also put on it:
"Little fuckers throwing snowballs in garden, scaring my dog. I'm going to piss in the snow and then rub their faces in it if they carry on."
[13]That was all admitted in evidence and Tabrett was properly cross-examined by Miss Levinson upon it. She says, however, that the witness was able to distance himself from being an aggressive person and attempted to do so in his answers to questions. He would not have been able to distance himself, she submits, had the jury also seen the boxing stance had she been able to put to him the relevant photographs.[14]We have seen the photographs which show Tabrett stripped to the waist and in a southpaw boxing stance. His body is tattooed. He clearly has a strong physique. The judge pointed out that he was not stripped to the waist on the night in question and it is not suggested that the appellant had seen the images himself, so that he, being with Tabrett in the public house that evening, would not have been aware of the physique when stripped to the waist or the boxing stance. A photograph of Tabrett in that stance was on the first page of the Facebook, so that anyone putting his name in would first be confronted with that image, submit Miss Levinson had the jury seen the photographs, they would have been better able to assess the effect which Tabrett's approach to the appellant would have had on the appellant and what he might reasonably think he needed to do by way of self-defence.[15]The photographs, Miss Levinson submits, would have brought the other evidence to light. The jury would have understood the threat that Tabrett presented to the appellant. Tabrett submits that, applying the test in section 100, the threshold for admissibility is a lower one. The judge erred in law in declining to admit the evidence.[16]No criticism is made of the summing-up. The judge gave proper directions on both count 1 and count 2. He made clear that "in other words the prosecution must prove to you, members of the jury, that the defendant was acting both deliberately and not in self-defence." Section 20 he stated, that is the section under which the conviction was entered:
"means simply that at the time the defendant caused the injury he must have foreseen, by his actions, he was going to cause some harm, even if it was not serious."
[17]A proper direction was given in relation to self-defence. In relation to count 1, on which there was an acquittal, the judge said that it must be established that the blow was "deliberately and not in self-defence and then have to consider the only remaining element, namely that it is suggested by the prosecution that he did what he did with an intention to do Dan Tabrett grievous bodily harm."[18]Plainly the jury were not satisfied that the intention was present. But having been correctly directed by the judge, they plainly concluded that the appellant was not acting in self-defence. He had gone beyond that and that he struck a deliberate blow upon Tabrett with the glass. Whether or not he did that and if he did it whether it was in self-defence were the central issues for the jury to consider. We however have to consider Miss Levinson's submission that the verdict is unsafe because the jury might have taken them into account, in reaching their conclusions had the photographs been available to them. They might have concluded that the section 20 offence was not made out, and that the prosecution had not disproved that the appellant was acting in self-defence.[19]We need to consider the material which was before the jury, following the judge's ruling, when they were considering their evidence. Page 26 of the summing-up

the judge stated:

"Now you know that Dan Tabrett has previous conviction for assault occasioning actual bodily harm. The incident which gave rise to that conviction occurred 9 years ago when he was a boy of 16. You will also remember the officer in the case describing the facts relating to it. He is now 24. You have also been told of various entries on his computer, in particular are on his Facebook, and it is said by the defence that when one puts together those entries and his previous conviction, that that shows he is aggressive by nature. He admits the entries on his Facebook but says that they were motivated by bravado or frustration, rather than being a statement of what he truly intended to do and you will recall there is a remark about what he proposed to do in this case if the jury that tried Mr Delaney eventually acquitted him and there was an observation about some youths whom he felt were not treating his dog very well. Obviously, you must consider do you find that that evidence shows that he has or may have a tendency towards aggression"
. The judge correctly went on to say that the jury must bear in mind the impression that Tabrett made on them while he was in the witness box. He gave them a conventional direction about bringing their experience of life when making judgment about people:
"If you do come to the conclusion that he may well have a tenancy to be aggressive as when the occasion suits him, you must take it into account when considering the defendant's claim that it was Dan Tabrett who was the aggressor and that he, the defendant, was simply reacting to that aggression. Even if you find that Dan Tabrett has an aggressive nature, it does not mean that he cannot be telling you the truth."
[20]In our judgment, that was an appropriate and a helpful direction to the jury. The jury must have had well in mind the characteristics of the witness, depending on their view of them, and of the evidence as a whole. We do not consider it a real possibility that the jury's deliberations would have been materially different if they had also had the photographs of Tabrett in a boxer's stance. The jury were rightly directed to the central issues we have mentioned earlier. In approaching those issues they had material about the characteristics of Tabrett and, in our judgment, sufficient to enable them to assess the evidence carefully and accurately.[21]We are unable to conclude that there is a real possibility that the addition of the photographs would have had a material effect on their deliberations. In those circumstances we have no reason to doubt the safety of the verdict this jury reached and accordingly the appeal is dismissed. (Submissions re: sentence)

LORD JUSTICE PILL: Robert Delaney appeals against sentence by leave of the single judge. We have described the evidence when considering his appeal against conviction and there is no need to repeat it.

[23]The judge had a very good opportunity to assess the evidence for himself for the purposes of sentence. The appellant has a previous conviction but the judge rightly did not attach much importance to that. The appellant received a conditional discharge. He has also been made subject to a caution for an assault occasioning actual bodily harm.[24]He is 28 years old. Numerous character references were submitted to the judge. He is a hard working man and has a supportive partner and extended family. He cannot, of course, seek a discount by way of a plea of guilty.[25]The judge's attention was drawn to the sentencing guidelines. The case comes within the category of those with a starting point of 18 months and a range of 12 months to 3 years. The starting point is substantially higher when grave injury results from an offence under section 20.[26]We have seen the photographs and the wound caused is consistent with the swinging motion of a glass which several of the witnesses described.

The judge commented that:

"...you did not take his eye out but you might well have done so. It is that serious."
Of course there is mitigation in the limited extent of the injury which actually occurred but the court has to bear in mind this was a glassing and the injury was to a most delicate part of the frame and required the stitching we have seen on the photographs. Miss Levinson has referred us to authorities. Each case must be treated on its own merits. We have referred to both the mitigating and the aggravating features but notably that this is an offence of glassing which any court is obliged to take most seriously.[27]As

the judge said:

"You and those like you who are tempted to pick up weapons in reaction to slights, real or imagined, must understand that the courts take a very dim view."
This was an experienced judge who heard the evidence and plainly from his sentencing remarks has carefully considered the factors involved in this case.[28]We have come to the conclusion that it cannot be said that the sentence he imposed was manifestly excessive. The result is that the appeal against sentence must be dismissed.