Samuels, R. v [2016] EWCA Crim 1876

[2016] EWCA Crim 1876No. 201601322 B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
Tuesday 15 November 2016
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE GOSS
and
MRS JUSTICE JEFFORD DBE
v
Between
GENESIS CHRISTOPHER SAMUELSComputer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020 7404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Miss S Harris appeared for AppellantMr O Gibbons appeared for CrownJ U D G M E N T(As Approved by the Court)Copyright©Date 2016-11-15
[1]On 7 December 2015 in the Crown Court at Snaresbrook the appellant was convicted of having an offensive weapon and having a bladed article in a public place. The jury were unable to reach a verdict on the first count in the indictment (assault by beating). The appellant was sentenced to concurrent terms of six weeks' imprisonment, suspended for twelve months. He appeals against conviction on the count relating to the offensive weapon with the limited leave of the single judge. He also renews his application in respect of a ground based on the alleged misjoinder of all three counts on the one indictment.[2]We will deal first with the issue upon which leave to appeal was granted.[3]The facts may be briefly set out. The appellant and the complainant had been in a relationship, in the course of which a baby daughter was born. As long ago as 19 August 2014 the appellant visited the complainant to see his baby. The appellant saw the baby on his own. When the complainant went to tell him that it was time to leave, there was an argument. The complainant said that he assaulted her. The appellant denied that. The police were called and statements were taken.[4]At about 8pm that same evening the appellant returned. He pushed roses through the door. The complainant called the police.[5]On arrival, the police found the appellant in the hallway. He was arrested in respect of the alleged earlier assault. He was searched and two articles were found in his rucksack. The first item was a pair of wooden “nunchucks”. Although we have not seen a photograph of the nunchucks, they were before the jury. They were described by the judge as follows: "They are two rather innocuous pieces of wood. They are linked together by a form of rope or chain. In this case I think it is a bit of cord. We know that they are primarily used – and we know that because the [appellant] has explained how they are used – in martial arts training".[6]The second article was a camping-style hatchet. The explanation given by the appellant for the possession of these articles at the time and in the course of his evidence was as follows. As to the nunchucks (or two pieces of wood), he said that he had those in his rucksack as he practised Wing Chun, a form of martial art, and he had taken them for training in the morning. As to the hatchet, he said that he was making a dummy for training. He needed the hatchet for cutting branches from a tree and sharpening them. He then tried to put those sharpened sticks into the tree, but it had not been a successful attempt.[7]The matter was contested on two bases. First, it was said in relation to the offensive weapon that the nunchucks were not an offensive weapon. Two points were taken. First of all, they were not offensive per se; they were not adapted for such use; and they were not in his possession for the purposes of causing injury. In the case of both the hatchet and the nunchucks, essentially he said that he had a reasonable excuse or he had good reason for having them. Nothing arises in relation to the bladed article (hatchet) count. We are concerned solely with the offensive weapon.[8]The issue has arisen because, having set out a description of the item,

the judge continued:

"So in a sense they are not offensive per se. They are not weapons which have been designed to hurt or cause serious injury. Of course you have to consider whether they were in fact offensive at the time and the test is whether they are capable of causing injury. Are those items that you see, and I say 'those' but it is actually one item linked together, is it capable of causing injury because if you are sure that it is capable of causing injury then it is an offensive weapon. The decision, however, has to be yours. You heard [counsel for the prosecution] make the point that if these were just rubber versions of the same thing then probably you would have no difficulty in finding that they were not offensive because rubbery items are probably unlikely to cause serious injury. But the test here is whether they were capable of causing injury and if you find that they were capable of causing injury then it is an offensive weapon so that element has been proved by the prosecution."
[9]It is unfortunate in this day and age, where an issue arises in relation to the ingredients of an offence and an explanation of the law has to be given to the jury, that the modern practice of putting directions in writing through a route to verdict was not followed. We are sure that if it had been, this matter would not be before this court.[10]The definition of an offensive weapon is set out in section 1(4) of the Prevention of Crime Act 1953. It is straightforward and simple. It provides:
"In this section 'offensive weapon' means any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him or by some other person."
[11]If and insofar as any further elucidation is required, there is the helpful judgment of this court given in 1983 in R v Simpson [1983] 1 WLR 1494, 78 Cr App R 115. It would have been easy for the judge to have fashioned a direction using those words and making it clear that if the jury did not find that the article was made for use for causing injury to the person, then they had to consider whether the article which was being carried was intended to be used for the purpose of causing injury to another person. The judge should not have said that the test was:
"Is it capable of causing injury?"
That was simply wrong. It is a matter of regret that that error occurred.[12]It seems to us that there was a material misdirection. As this was a central issue in the case it is impossible for us to say that the conviction is safe. We therefore quash the verdict in relation to the offensive weapon.[13]However, the count in respect of the bladed article stands, unless the appellant is able to persuade us that the single judge was wrong in the view that he took and that leave to appeal should be granted.[14]It is clear from the history of the matter that has been placed before us that at the trial that took place before the judge, in which he gave the summing-up to which we have referred, no question whatsoever arose about joinder. It was accepted by counsel then appearing for the appellant that the counts had been properly joined. Unfortunately, what seems to have happened is that after the verdict the question arose as to whether there should be a retrial on the count of assault by beating.[15]The trial date was fixed for 6 January 2016. When the case was called on that day, unfortunately, Mr Gibbons, who had been the original trial counsel for the prosecution, was not present, and there was new counsel for the appellant. Counsel for the appellant took the view, and argued before the judge, that there had been an improper joinder. It is unfortunate that no one spoke to Mr Gibbons, and even more unfortunate that counsel for the Crown seems to have conceded the point, some might say in a rather pusillanimous manner – certainly without consulting trial counsel as to what had happened before. As a result of counsel taking that position, the judge decided that the counts had been misjoined. There was no proper argument – certainly no ruling – and he therefore quashed the count charging assault by beating.[16]We in this court could re-examine the question as to whether or not there was proper joinder. We consider that it is unnecessary to do so, because it is well-established that if there has been a misjoinder, this can in no way render unsafe the conviction on the two counts unless there was prejudice.[17]We are in entire agreement with the single judge that this case comes nowhere near establishing any such prejudice. In the first place, it is clear that on several occasions the judge directed the jury that they must consider each of the counts separately. Secondly, the jury disagreed on the assault by beating count. It is evident, therefore, that they must have carefully followed the judge's directions. The single judge was plainly right: there was no prejudice in this case.[18]For that reason, although we allow the appeal on the offensive weapon count, we refuse the renewed application on the remaining count.[19]There is, rightly, no application in respect of sentence. The sentence passed by the judge for having a bladed article in a public place, which was by far the more serious count, must stand.[20]We would like to thank counsel for their short and eloquent arguments.