Dicks, R. v [2013] EWCA Crim 429

[2013] EWCA Crim 429Case No 2012/5417/D2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sitting at The Law Courts
Venue Cathays Park, Cardiff, CF10 3PGDate Thursday 14th March 2013
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE MITTING
MR JUSTICE MALES
Between
R E G I N ACrownv
Between
ANDREW JOHN DICKS
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)
Mr F Phillips appeared for AppellantMr D Lewis appeared for Crown
J U D G M E N T

LORD JUSTICE LEVESON:

[1]On 5th September 2012 in the Crown Court at Swansea before Mr Recorder Bull QC and a jury, this appellant was convicted of inflicting grievous bodily harm. He was sentenced to two years' imprisonment with a direction that the time spent on remand was to count towards his sentence. A restraining order was made under section 5 of the Protection from Harassment Act 1997. He now appeals against that conviction by leave of the single judge.[2]The facts can be summarised shortly. The complainant and the appellant were in a relationship and had a young child. On the evening of 25th April 2012 he attended her address and stayed overnight. The following afternoon the complainant attended the emergency department at her local hospital where she was examined and found to have dried blood around her nose and lips, together with a wound to the left of the bridge of her nose which was deviated to the right. Treatment involved manipulation of the nasal bones carried out under general anaesthetic.[3]The prosecution case was that on the morning of 26th April 2012 the appellant became aggressive in the course of an argument and headbutted her causing the injury. The defence case was that it was an accidental clash of the heads. The two were arguing. He was sitting on the sofa and she was standing in front of him. She began to throw punches. As he got up his head accidentally made contact with her nose, causing her injury. The issue for the jury therefore was whether the injury was inflicted accidentally and whether it amounted to really serious harm.[4]The grounds of appeal require that the evidence be described in a little more detail. The complainant gave evidence that the relationship between the two had been on and off and by the time of the incident was "off". He came over on the evening of 25th April to see his son and stayed the night. Everything was fine until the following morning when she asked him to mind the child whilst she went to the post office. He did not want to do this as he wanted to sleep. She said the two argued. The argument took place downstairs. She asked him to leave. He refused. He sat down and as she waved her finger, motioning to get out, she said that he tried to bite her finger. She grabbed hold of his top. He lost his temper and threw his phone on the floor, breaking it. He was on the settee and she was standing in front of him, pulling his top, trying to get him to leave. He stood up and headbutted her. This split her nose and made her feel sick and dizzy. He then threw a cloth at her as if to say 'clean yourself up'. She then started punching at him to make him leave. Within five minutes she called her father.[5]Her father's evidence was read. She was in a panic and asked him to come over. He got to her house a few minutes later. She was distressed and the child was screaming. She had a rag to her nose and blood was pouring out of a cut on the bridge of her nose. She complained to him that the appellant had done it by headbutting her. He telephoned the police.[6]The appellant was arrested and interviewed. He gave an account which he was to repeat before the jury that he was unhappy at being woken up and asked to look after the child, there was an argument, there came a time during the argument when he was sitting on the settee when she started attacking him, punching him to the head and face. He denied trying to bite her finger. As he stood up their heads accidentally clashed. With regard to the phone, when she was attacking him he tried to call 999, but the phone did not work so he threw it on the floor in frustration. He did not lose his temper with her, but with the phone. Then as he was making his way to the door he passed her a towel for her face, but she did not want it. She left of her own accord.[7]It is necessary to describe the circumstances because the primary issue in this appeal refers to two comments made by the complainant when she was giving evidence. Twice she said that she had complained to her father that he, the appellant, had assaulted her "again". On the first occasion she said it in answer to a question she was asked. Prior incidents had not been elicited. In the second case she said it in answer to a question asked by the judge. Thus the ground of appeal relates to the single word "again" and in particular the implication that it carried, namely that there was a prior history of violence by the appellant towards the complainant.[8]An application was made to discharge the jury which the judge determined he would consider after the evidence had been concluded. He later ruled that the defence application to discharge the jury should be refused. He did not consider that the jury had been prejudiced.[9]Mr Phillips, who appears for the appellant as he did in the court below, argues attractively that the use of the word "again" was indicative of bad character which the Recorder had not admitted and that it was difficult to see how the jury could approach the case otherwise than against the background of at least an allegation of such bad character.[10]In our judgment that overstates the meaning and effect of the word "again". On this occasion the complainant was alleging that the appellant had assaulted her. There was no evidence one way or the other to confirm that the allegation which she was making, which itself had to be judged by the jury, was one that she had made before, in particular whether accurately or inaccurately. The evidence was entirely silent as to the background of their relationship and in those circumstances this case was very different to the not infrequent example of inadvertent reference to prior convictions which speak for themselves.[11]Where inadmissible, prejudicial material is inadvertently disclosed to the jury, the ultimate question for the judge in determining whether the jury should be discharged or to continue with the trial is whether that trial, by reason of the disclosure, could result in an unsafe conviction. That issue was the subject of judicial analysis in Lawson [2007] 1 Cr.App.R 20, in which Auld LJ said at paragraph 64:
"Perhaps, more useful is the simpler and more broadly expressed formulation in Re Medicaments and Related Classes of Goods (no 2) [2001] 1 WLR 700, CA, whether a fair- minded and informed observer would conclude that there was a real possibility, or real danger, that the jury would be prejudiced against a defendant by wrongly admitted prejudicial information."
He went on to observe that whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of a case and that this court will not lightly interfere with his decision: see paragraph 65.[12]In our judgment, this was a perfectly legitimate exercise by the judge of his discretion to decline the application to discharge the jury and we do not consider that there is sufficient in the grounds to justify concluding that the conviction is unsafe.[13]In support of the former application, Mr Phillips advances four concerns, if not criticisms, that the learned Recorder entered into the arena by adversely commenting upon the defence case in four particulars. These particulars relate to the force used by the appellant to smash his mobile phone as being indicative of his temper; the apparent lack of concern for the complainant's wellbeing; the observation of the Recorder that the complainant was "in some panic, you may think" when she telephoned her father to inform him of her injury; and the failure to remind the jury that the complainant did not telephone the police after the alleged assault, but rather her father did.

The Recorder made it clear during the course of his summing-up in conventional terms:

"Now, of course, I may express an opinion. If I do ignore it unless you agree with it. I will summarise the facts, but remember please it is a summary. If I lay undue emphasis on part of the evidence that you think is unfair ignore, my emphasis. If you think that I do not mention some fact that you think is important, bring it back into account when you retire in a little while to consider your verdict. So it is your view of the evidence that counts."
[15]In our judgment, the learned Recorder was perfectly entitled to give the assistance to the jury that he felt appropriate in the context of this case. Mr Phillips advances this ground as ancillary to and supportive of the first. In our judgment there is insufficient in either to justify even a remote argument that this conviction is unsafe. The appeal is dismissed.