Lodge, R v [2013] EWCA Crim 987

[2013] EWCA Crim 987Case No 201300176 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
HIS HONOUR JUDGE SEED
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/06/2013
Before
LORD JUSTICE PITCHFORDMR JUSTICE GRIFFITH WILLIAMSHIS HONOUR JUDGE FORD QC
Between
RAppellantJUNIOR LODGERespondent
Rhodri James (instructed by Registrar Criminal Appeals) for AppellantTom Little (instructed by CPS) for RespondentHearing Hearing date: 6 June 2013
Judgment
[1]On 6 June 2013 the court heard argument in support of the appellant’s appeal against conviction brought with the leave of the single judge. At the conclusion of argument the court dismissed the appeal. These are the court’s reasons. Conviction and grounds of appeal[2]On 5 December 2012 at Inner London Crown Court before His Honour Judge (“HHJ”) Seed the appellant was convicted upon count 1 of inflicting grievous bodily harm on Richard Stickler, contrary to section 20 Offences Against the Person Act 1861 and upon count 2 of assault by beating Veito Freitas, contrary to section 39 Criminal Justice Act 1988. On 18 February 2013 the appellant was sentenced to a term of 18 months imprisonment upon count 1 and 6 months imprisonment concurrent upon count 2.[3]The appellant raises two grounds of appeal: The first is that the judge failed to exercise his discretion under section 78 Police and Criminal Evidence Act 1984 to exclude evidence adduced from the complainant Richard Stickler as to his own good character. The second ground (which Mr James, on behalf of the appellant, at the outset of his submissions, conceded was unlikely on its own to support a conclusion that the verdict was unsafe) is that the judge intervened inappropriately during the evidence of a defence witness and by that means demonstrated a bias against the defence case which was compounded by a failure in the summing up to summarise the witness’s evidence. Mr Little who represented the respondent in the appeal did not appear as counsel for the prosecution at trial. Evidence at trial[4]The evidence established that in the early hours of 29 January 2012 three men, Richard Stickler, Veito Freitas and Paul Stedder were in Clapham High Street, opposite Clapham Common underground station, waiting for a bus to take them home. Earlier that day they had been playing rugby following which they had been drinking steadily. While they were at the bus stop the appellant drove his red Fiat Punto motorcar into the bus pull-in. He was accompanied by two female passengers, Nicole Reid, with whom he was then in a relationship, and her friend, Natasha Clarke. Nicole Reid opened the rear passenger door and vomited violently on to the road surface. This was the cause of some hilarity among bystanders who included Stickler, Freitas and Stedder. It was their evidence that the appellant took exception. He approached them in an angry manner, using terms of abuse. Mr Stickler told him to calm down and look after his girlfriend. The appellant used his leg to sweep Mr Stickler off his feet causing him to fall back and hit his head on the pavement. He was temporarily knocked out. When he came round Mr Stickler asked, “What did you do that for, you prick?” The appellant responded “I dare you to call me a prick again”. Mr Freitas did so at which point the appellant squared up to him. Mr Stickler removed his jacket intending to intervene but Mr Freitas was immediately punched to the ground. According to the three men, both girls, Nicole and Natasha, were attempting to restrain the appellant. The appellant re-directed his attention to Mr Stickler who was again struck to the ground.[5]The end of the incident was captured by CCTV. By the time the police arrived the appellant had gone, leaving his car at the side of the road. Their attention was drawn to the two girls who had walked a short distance away from the car. PC Borthwick asked the girls what had happened. She said in evidence that they responded they had seen nothing and they refused to co-operate.[6]Mr Stickler was taken to hospital where he received treatment for bruises, a damaged ear canal, a minimally displaced fracture of the lower jaw and a small fracture of the left eye socket.[7]At 5.15 am, just over an hour after the incident took place, the appellant was found in his red car. He had altered his clothing and when approached gave a false name. The explanation which he gave later was that he had changed his clothing because he was cold and he had given a false name because he did not possess a full driving licence. At interview under caution the appellant declined to answer questions but produced a prepared statement. In that statement it was alleged that Mr Stickler’s group had been laughing and shouting, “Look at that coon being sick”. The appellant claimed that he had asked them to moderate their racist language. They continued to abuse and threaten the two girls with racist language. He said that he was outnumbered and defended himself from assault by the three men.[8]In evidence the appellant said that after the confrontation he went to his father’s house and changed his clothes before returning later to fetch his car. Although he claimed at trial to have suffered injury he told the reception officer at Brixton police station that he had not. At 11.00 am the next day he requested a doctor saying that he had an injury to his hand and blurred vision. In evidence he gave an account consistent with that in his prepared statement. He denied sweeping Mr Stickler off his feet. He admitted that he had punched all three men but said he had acted in self-defence. He claimed that he was suffering a panic attack and as soon as he could he left the scene. The admission of rebuttal evidence[9]In the course of cross-examination of the complainant Richard Stickler, which took place on Thursday 29 November, it was put to Mr Stickler that he had directed to Ms Reid the remark, “Look at that coon throwing up” and to the appellant the words, “Dirty nigger”. Mr Stickler replied:
“I find that offensive … I am not racist. I would never be racist. I have got friends who are all different ethnic minorities. I am godfather to a daughter who is half Antiguan and half Asian. Why in earth would I say such things?”
At the conclusion of cross-examination Mr James again suggested to Mr Stickler that he had called Ms Reid a coon and the appellant a nigger. Mr Stickler responded “definitely not” and said that his best friend, Ben, was black.[10]On Monday 3 December Mr Benson for the prosecution applied to recall Mr Stickler to give further evidence. In October 2007 Mr Stickler had been one of a number of people who had made an expedition to climb Mount Kilimanjaro to raise money for a charity which did work in Tanzania. During his stay a photograph of Mr Stickler carrying a young black Tanzanian boy was taken. The prosecution was unaware of this evidence when Mr Stickler had first been in the witness box and wished to adduce it in rebuttal of the defence assertion that the witness had started the violence by his racially aggressive behaviour towards the appellant and his girlfriend.[11]In his ruling the judge acknowledged that the prosecution could not be permitted to adduce evidence of the general good character of its own witness. However, he identified an exception to the general rule when the evidence went to a specific issue raised in the case. He said at page 4G of the transcript of his ruling:
“It actually goes to the propensity of the witness to behave in the way that the defence alleged he did behave on the night in question, which gave rise to this incident turning out the way it did and the fact that Mr Stickler is quite happy to be seen holding a black boy, in a friendly, avuncular way, and is prepared to go and raise money for the benefit of deprived communities in Africa, very much will affect whether or not the jury consider he is the sort of person who would have started this incident and caused it to develop in the way it did by using expressions such as “nigger”, “filthy nigger” and “coon”, and in my judgment this is exactly the sort of evidence about a prosecution witness’s character which can be admitted, because it goes to a central issue in the case and not just bolstering his credibility.”
The judge went on to find that the admission of the evidence would not result in unfair prejudice to the appellant.[12]Mr Stickler was recalled to describe the nature of his charitable work in Tanzania and to produce the photograph as exhibit 2. The photograph was posted on a website called “beerandrugby.com”. He explained that the photograph was taken at a hospital called the Amani Centre which was also an orphanage for 250 children of whom the little boy in the photograph was one. In cross-examination Mr James asked the witness whether he was responsible for a posting on the website applauding the act of “taking the ugly bird home”. He admitted that he was. Mr James suggested that that was a sexist comment. The witness replied that it wasn’t meant to be sexist. It was a bit of fun. Judge’s intervention[13]Natasha Reid was called to give evidence in the course of the defence case. She purported to support the appellant’s account that she, the appellant and Natasha Clarke were subjected to racial abuse. She said that as Mr Stickler’s group was hurling abuse at the appellant she became terrified and walked away from the car with her friend Natasha. She suggested that it was the appellant who was the victim; a punch was aimed at him and he responded. She and Natasha moved away before the incident developed further. She claimed not to have seen any of the men go to the ground.[14]In cross-examination Mr Benson for the prosecution invited the witness to watch the CCTV film. It was apparent that the two girls had walked a short distance away from the car. It was suggested to her that she must have seen at least one person go to the floor. The witness denied it. She was shown part of the CCTV that showed her standing on the pavement close to the incident. She insisted that she went away not because the police arrived but because she was frightened and wanted to go home. She was asked why, when she was approached by PC Borthwick, she claimed to have seen nothing and did not wish to get involved. She was asked why she did not tell the policewoman that her boyfriend had been attacked by three men. She replied “I wanted to get out of there”.[15]It was suggested to her that her friend Natasha was not with her because Natasha could be seen getting out of the car at the same time as the appellant after the incident was over. The following passage took place:
“Benson: You just told me that when this incident was taking place you and Natasha moved a safe distance away and neither of you re-approached it. You then walked off from a safe distance. Witness: Say that to me again, when what happened? Judge: You said that Natasha got out at the same time as you and you left this incident. We have just seen Natasha getting out of the car after the incident is all over. Where is the truth in all this? Witness: I don’t know how Natasha got back into the car. Benson: You are not telling us the truth are you? Witness: No, I am telling you the truth.”
Witness: Say that to me again, when what happened? Benson: You are not telling us the truth are you? Witness: No, I am telling you the truth.”

Benson: You are not telling us the truth are you?

[16]Mr Benson pressed the witness with the fact that far from leaving the area the CCTV demonstrated that she remained and must have seen what was happening. She had only walked towards the tube station after the incident was over and when the police were arriving. Mr Benson asked:
“Q: You are suggesting are you that in the 3 or 4 minutes footage that I have just played you, you covered the distance of maybe this courtroom? A: Listen. Maybe I was standing there going, “Oh my God”
. I was in shock I didn’t know what had just happened. I was terrified. Whether it took me 5 minutes to get to there, I wasn’t hanging around to see what had happened. Why wouldn’t I have come around to the front then? Judge: You just answer questions, preferably honestly. Benson: Your first reaction when confronted by the police was to say that you had not seen anything, was it not? A: I can’t remember exactly what I said, all I said was that I wanted to get out of there.” Mr Benson pressed the witness upon the fact that, on the one hand, she was saying that she was crying and screaming and needed to get away when, on the other, the CCTV film demonstrated that she remained in the immediate vicinity. The witness replied that she was not hanging around.

The judge intervened to ask:

“You only started moving when the police appeared. We have just seen that. It was only when a police officer came over towards you that you started leaving the scene – why?”
There was no direct answer to the question and the judge formed the view that the witness was “bantering” with him. The witness was shown the CCTV a second time and Mr Benson continued to challenge the witness’s account that she did not respond to the police because she was frightened and wished to get away. Finally, Mr Benson put to Ms Reid:
“Q: The truth is that at one stage during this incident you and Natasha actually tried to stop Junior Lodge when he lost his temper did you not? … A: Maybe I said to Jay, “Stop, come on let’s go”
. I can’t remember that actually, but all I know is that I was frightened and I wanted to get out of the situation. I didn’t know if I was going to get hit. I didn’t know if there was more than three of them. I don’t know. I was frightened.”[17]At the end of cross-examination

the judge asked:

“On that picture you see frozen on the screen, that officer on the right is Police Constable Borthwick. She came over to ask you about this incident and you told her that you had not seen anything. Why did you say that? A: I don’t know I just wanted to get out of there to be honest. I just wanted to get out of the situation.”
Ground 1: Admission of Good Character Evidence[18]It is a well recognised rule of evidence that “in general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up” (see the judgment of Lawton LJ in Turner [1975] 1 QB 834 at page 842C). However, Mr James recognised that there were circumstances in which evidence of the specific disposition of a witness may be relevant to an issue in the case and, therefore, capable of proof. In IWAT (also known as Amado-Taylor) [2001] EWCA Crim 1898 (Keene LJ, Garland and Burton JJ) the court was reviewing the conviction of the appellant for an offence of rape the trial of which, it should be noted, took place before the enactment of the bad character provisions in the Criminal Justice Act 2003. During the course of the evidence for the prosecution the complainant’s boyfriend had been permitted to give evidence that the complainant had strict sexual morals. She was a virgin and firmly believed in her Catholic faith. On appeal it was argued that the evidence was inadmissible because it amounted to “oath-helping” (see Beard [1998] Crim LR 585 and Robinson [1994] 98 Cr App R 370).[19]At paragraph 21 of his judgment Keene LJ said: “21. But the general principle is that evidence which is relevant to an issue in the trial is admissible unless, of course, excluded by reason of one of the normal exclusionary rules of evidence. Cases may arise where evidence of the victim’s dispositional character may well be relevant to an issue in the case. One of the more obvious instances would be where the defence of self-defence is raised on a charge of personal violence. For example, on a murder charge, it appears to be accepted that the accused may adduce evidence to establish that the victim was of a violent disposition if self-defence is being run as a defence. We note that in Phipson on Evidence, 15th Ed, the following passage is to be found: “If the accuser’s defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former”: 19-02. 22. We agree with that proposition. Since the defence in such a case can in any event call evidence of good character of the accused, as is recognised by the very existence of section 1(f)(ii) of the Criminal Evidence Act 1898, it would seem anomalous if the complainant were not able to seek to establish his non-violent disposition”. “If the accuser’s defence to a charge of some crime of violence is that he was defending himself against an attack launched by the complainant, it is apparent that the non-violent character of the latter is no less relevant as a matter of logic than that of the former”: 19-02.[20]The court noted that in a number of cases involving allegations of sexual offences evidence had been admitted to establish a relevant disposition of the complainant in the face of assertions by the defence that she consented to particular sexual activity. It was concluded that upon the facts of the case the judge had properly admitted evidence of the complainant’s disposition to resist any form of pre-marital sexual intimacy.[21]In RG [2002] EWCA Crim 1056, [2003] Crim LR 43 (Auld LJ, Newman and Roderick Evans JJ), the court considered the application of the principles identified in Amado-Taylor to a case of alleged murder with the use of a knife. The issue between the prosecution and the defence was one of self-defence. The appellant claimed that he had disarmed the deceased and used the knife in self-defence. The prosecution was permitted to adduce the evidence of the deceased’s friends to the effect that to their knowledge he was carrying no knife on the night of the killing and had never done so. One of the witnesses went further and said:
“In the time I knew him I have never known him to carry a knife. He was a gentle, laid-back, beautiful man.”
The first ground of appeal was that the judge had permitted the witnesses to speak in general about their belief, and one witness to provide a description of the deceased’s character which went beyond the factual issue whether the deceased had taken a knife to the scene. Secondly, the judge had, without further explanation or warning, simply repeated the witness’s evidence to the jury. In his judgment on behalf of the court, Roderick Evans J noted that the principles to be applied were those identified by the court in Amado-Taylor. The appeal was allowed on the ground that in the absence of explanatory directions from the judge the admission of the evidence was unfair. The appellant had felt compelled to introduce his own convictions, which the prosecution had not sought to do, in order to counter the implied assertion that he must be a man who was likely to arm himself with a knife. The court concluded that although relevant evidence was admissible upon the issue of self-defence the admissible evidence from the victim’s friends was of so little probative value that the judge should have provided the jury with specific directions upon its limitations. The judge’s directions tended, in the view of the court, to have shifted the focus away from the central issue, namely whether the knife had been used in self-defence, to a secondary issue as to which of them was more likely to have carried the knife to the scene. The court also allowed the appeal upon a second ground relating to the judge’s comment upon the absence of a witness who may have been, but was not for good reason, called on behalf of the defence.[22]Mr James accepts that in his response in cross-examination to the allegation of racist abuse which formed an integral part of the defence of self-defence, Mr Stickler was not limited to a monosyllabic denial. He was entitled to demonstrate that his disposition was the opposite of that alleged. Either in cross-examination in response to Mr James’ questions, or in re-examination, evidence of Mr Stickler’s charitable work in Africa and his disposition towards a black child was admissible. He also concedes that it was open to the prosecution before the close of its case to seek permission to recall the witness in order to deal further with the allegation made. Mr James’ criticism is that the judge failed to exclude the evidence as unfairly prejudicial within the meaning of section 78 Police & Criminal Evidence Act 1984.[23]Mr James’ argument is that the production of the photograph and the detail of the rebuttal evidence may have had the effect of diverting the jury from the central issue in the case which was one of self-defence. They may have been tempted to concentrate on the issue whether or not Mr Stickler was a man likely to have used racial abuse rather than on the issue whether the appellant responded to a physical attack upon him by Mr Stickler and his friends.[24]We do not accept this submission. The fact that the evidence in response to the allegation may have been compelling is not a reason why the jury should have been deprived of the opportunity to consider it. We accept that it did not follow inexorably that a man well disposed towards black people would not, when in drink and challenged as to his behaviour, use racist language towards a black man and a black woman. That was an argument available to Mr James’ which he used in his address to the jury. However, the commencement of the incident as alleged by the appellant seems to us, as it seemed to the judge, to be inseparable from the question whether the jury could be sure that it was the appellant and not Mr Stickler who was the aggressor. This was not a collateral issue but a central one. The appropriate balance was to be struck by appropriate directions to the jury in summing up.[25]It was conceded by the defence that the attack upon the credit of the prosecution witnesses laid open the defendant to the admission of his own bad character. That was limited to two offences of common assault in 2005 and 2006. The judge was explicit in his directions that the only relevance of the convictions was the effect they had on a judgment whether the defendant’s allegations as to Mr Stickler’s racist behaviour were to be believed. It was not open to the jury to use those convictions for the purpose of reaching any other conclusion favourable to the prosecution. When he came to direct the jury as to the effect of Mr Stickler’s evidence in response to the allegations of racist aggression the judge said this:
“Similarly, and it is the other side of the coin in a way, you have exhibit 2, the details of Mr Stickler’s work with charity and his charitable activities, particularly for Tanzanian orphans and others. They are not before you and you do not use them for you to see what good character Mr Stickler has, because that is not relevant. They are there to assist you with whether or not he is telling the truth when he says he is not a racist and did not and would not make racist remarks. That is why you have had exhibit 2 put before you. It is on that issue, to decide whether or not someone who does that sort of work and has that sort of relationship with Tanzanian orphans, would make the remarks alleged here.”
[26]The judge’s directions upon the issue of self defence are not the subject of criticism; nor could they be, because the judge’s direction was full and fair. In our judgment there was no unfairness to the defendant generated by the admission of this evidence. The jury understood the relevance of the evidence and its limitations and were well able to make the judgement whether on the night of the incident Mr Stickler may have acted out of character. Ground 2: Evidence of Nicole Reid[27]We accept that the judge was unwise to become embroiled in the argument between Nicole Reid and prosecuting counsel as to the effect of the CCTV evidence. However during his first interruption the judge was attempting to draw the witness’s attention to the question she was being asked. When the judge asked the witness, “Where is the truth in all this?” it does not seem to us that the jury would have construed his question as a sign of bias one way or the other. The judge was simply repeating the effect of counsel’s questions. Notwithstanding the judge’s intervention the witness continued to make her assertions without confronting the evidence that, far from escaping because she was frightened, she was clearly at the scene while the violence was taking place. We do not consider that the judge should have told the witness to answer questions “preferably honestly”, because that may have conveyed to the jury the impression that the judge did not believe that the witness was already at least attempting to tell the truth. The judge’s third intervention was another attempt to direct the witness to the question she was being asked. He was, in our view, entitled to express his view that the witness was being argumentative rather than facing the question put to her.[28]Mr James asserts that the judge’s interventions were capable of rendering the subsequent verdicts unsafe. His error was compounded, he submits, by the judge’s failure to summarise the evidence during the course of his summing up.

The judge said at page 33E of his summing up:

“Nicole Reid. What you made of that evidence is a matter for you. You will treat it fairly with all evidence it is fresh in your mind and I do not remind you of it.”
The witness’s evidence was given between 10.07am and 10.45am on 5 December 2012; the judge’s summing up commenced at 11.29 am and was concluded by 3.20 pm. In our view the judge was entirely right to observe that the evidence would be fresh in the jury’s memory and that it was unnecessary for him to summarise it. At the commencement of his directions of law the judge made it abundantly clear that decisions as to the reliability and effect of the evidence was a matter for the jury and not for him. Having read the transcript of Ms Reid’s evidence it seems to us that her evidence was discredited by her refusal to confront the inconsistency between her explanation of her movements and her movements as seen in the CCTV film. It was, of course, the prosecution case that both she and Natasha Clarke had intervened in an attempt to stop the appellant from continuing his attack upon Mr Stickler and his friends, and this was why the police were directed to the two girls when they arrived on the scene. It seems to us that any summary of the evidence by the judge was bound to underline for the jury the difficulties presented for the appellant’s case by Nicole Reid’s evidence. There was no rational explanation why, if the appellant had been subjected to a racist attack, Ms Reid should not have said so when she was approached at the scene by the police. Her explanation that the incident had been so frightening that she felt compelled to leave was contradicted by the CCTV film. Contrary to the witness’s evidence, she had not left the vicinity while the violence was ongoing. She was at the scene when the police arrived and only then began to move away. While we consider that one of the judge’s interventions was imprudent, none of them, individually or cumulatively, would have had any significant effect upon the jury’s consideration of her evidence. We do not consider there is a risk that the safety of the verdicts is compromised.[29]It was for these reasons that the appeal was dismissed.

Cited in 1 later judgment