Keane, R. v [2016] EWCA Crim 2018

[2016] EWCA Crim 2018No: 201504635 C3/201504650 C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 18th November 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MRS JUSTICE MCGOWAN DBE
HIS HONOUR JUDGE MARSON QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
DAVID KEANE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr N Johnson QC appeared for AppellantMr A Thomas QC appeared for Crown
J U D G M E N T (Approved)

LORD JUSTICE GROSS:

[1]We are grateful to both counsel for their assistance. In the event we have not needed to call on Mr Thomas but found his written submissions most helpful.[2]Our strong inclination would be, without more, to refuse the application for leave to appeal and to dismiss the appeal on the simple ground that, having seen the CCTV, the verdicts of the two juries are safe, and manifestly so, even if every other point in the case was decided in the appellant's favour. That is indeed our view but out of deference to the arguments advanced before us we shall delve into somewhat greater detail.[3]On 16 February 2012, in the Crown Court at Manchester, before Mr Recorder Carus QC, the applicant was convicted of causing grievous bodily harm with intent contrary to section 18 of the Offences Against the Persons Act 1861: count 1. No verdict was taken on count 2, a section 20 alternative. He was sentenced to 6 years' imprisonment. We shall refer to that trial as trial 1.[4]Following the tragic and subsequent death of the victim of that assault, a second trial took place before His Honour Judge Stockdale QC, the Recorder of Manchester. At the conclusion of that trial on 16 September 2015 the appellant was convicted of murder.[5]On 17 September 2015, he was sentenced to life imprisonment with a minimum term as specified by the Recorder of Manchester and allowing for the time served in respect of the sentence following trial 1. The second trial we will refer to as trial 2.[6]The matter comes before us in this fashion. In respect of trial 1, an application for leave has been referred to us by the single judge. It is 3 years 6 months and 24 days out of time. In respect of the appeal against the conviction in trial 2, the matter comes before us by way of an appeal, leave having been granted by the single judge.[7]The facts are these. The applicant was the temporary manager of the Huntsman public house in Rusholme, Manchester. The complainant, George Harris, was a regular customer and had known the applicant for many years. On the evening of Sunday 3 July 2007, at closing time at approximately 23.30 the applicant went around the pub asking people to leave and collecting glasses. During the course of doing so he told the complainant and his group that it was time to leave. An altercation ensued between the two men which was captured on CCTV.[8]The prosecution case was that the applicant repeatedly punched the complainant to the face before pushing him to the ground and immediately stamping on his head. As a result, the complainant sustained a severe head injury and developed post-traumatic epilepsy. The defence case was that the applicant had acted in lawful self-defence. The issues for the jury were whether he caused injury amounting to serious bodily harm, his intention in doing so and self-defence.[9]Turning to the facts in trial 2, the prosecution case was of course the same with regard to the incident in the public house. It was that the appellant was not acting in lawful self-defence and that he intended to cause really serious injury, and did do so, which resulted on 30/31 December 2013 in Mr Harris' tragic death. As a result of the appellant's actions on that evening, Mr Harris developed post-traumatic epilepsy and it was that condition which caused his death some two and a half years later. Accordingly, the appellant was guilty of murder.[10]It was common ground in trial 2 that as a result of the injuries sustained on 3 July 2011, the deceased developed post-traumatic epilepsy. There were two seizures the following day, a major seizure in July 2012 and another in September 2013.[11]The defence case was that:(1) The prosecution could not prove that the post-traumatic epilepsy was the cause of death.(2) The appellant acted in lawful self-defence, responding justifiably to a real threat of violence by the deceased on him.(3) He did not at any time intend to cause serious injury.[12]The issues for the jury were these:(1) were they sure that on 3 July 2011 the appellant caused an injury to the deceased which contributed significantly to his death. If so,(2) were they satisfied on the balance of probabilities that at the time when he inflicted the injury that contributed significantly to the death he was acting in self-defence. If not,(3) were they satisfied on the balance of probabilities that at the time when he inflicted the injury that contributed significantly to the death he did not intend to cause really serious injury. If not, the verdict was guilty.[13]Issues 2 and 3, to which we have just referred, were framed in that way because the learned judge, the Recorder of Manchester, had admitted in evidence the section 18 conviction from trial 1 under section 74(3) of the Police and Criminal Evidence Act 1984 (“PACE”). The judge had granted a prosecution application to admit the section 18 conviction as evidence that the appellant committed the assault, specifically that his actions were unlawful and that his intention was to cause grievous bodily harm, all these being necessary elements of the offence of murder. The judge was not persuaded by defence submissions to exclude the evidence under section 78 of PACE on the basis that the conviction was unsafe or that to admit the evidence would be unfair. The judge also rejected a submission that section 74(3) was incompatible with Article 6 of the European Convention on Human Rights ("ECHR") as it shifted the burden of proof onto the defendant.[14]We turn briefly to the evidence. Most significantly, we have watched the CCTV footage of the incident. We have already referred to that and we shall return to it presently.[15]Starting with trial 1, the complainant, Mr Harris, of course gave evidence. Unsurprisingly, he could not remember anything about the assault.[16]A Michelle Carroll was working behind the bar at the time. There had been no problem with the complainant during the evening. At closing time she returned to the bar with some glasses and saw him on the floor. The applicant was standing over him and stamped on his head. She saw one fast stamp and his foot made contact with the complainant's head. The applicant then quickly left the public house, saying he had had enough of the place. Afterwards, the complainant was gurgling, so she called an ambulance.[17]A brain scan revealed the gravity of the injuries sustained. The judge directed the jury (indeed, as we understand it, it was common ground) that the brain damage was caused by the stamp to the head and was capable of being really serious harm.[18]The applicant's footwear left marks on the side of the complainant's head and had the complainant's blood deposited on it.[19]The applicant was arrested and interviewed under caution. He made no comment.[20]He gave evidence which in broad terms said that he felt threatened by the complainant and had acted in self-defence. In cross-examination he said he did not realise he had stamped on the complainant. He maintained self-defence. He relied on his own good character and the fact that the complainant and the witness Ms Carroll were not of previous good character.[21]In the second trial, the jury heard evidence of the deceased's previous witness statements and his evidence from the earlier trial. The jury also had a transcript of the evidence of the appellant from the earlier trial. He had acted in lawful self-defence with a pre-emptive strike as he feared he was about to be attacked by the deceased, who he believed had a knife. The deceased was on cocaine. Feeling threatened, he punched the deceased, who then reached out to grab him but fell. They scuffled. It lasted a couple of seconds. In cross-examination, the appellant said this:
" ... it was all one fluid movement ... it just happened so quick"
. He added:
"I did not think, right he's on the floor, now I'm going to stamp on him. I didn't make a decision. I didn't intend and I didn't aim for him; it was just the way he fell."
Ms Carroll gave evidence broadly consistent with the evidence she gave in trial 1. The CCTV footage was shown. The unchallenged findings of the forensic scientist supported the view that the appellant had forcibly stamped on the deceased's head. Medical evidence was heard from the doctors and the prosecution relied on the expert opinions of a number of specialists. Dr Du Plessis, a neuropathologist, gave evidence that in view of the history of epilepsy and the deceased's failure to self-medicate properly and in view of the circumstances in which he died, the diagnosis of death from epilepsy was sound. Other specialists ruled out any cardiac or toxicological cause of death.[22]In cross-examination, Dr Du Plessis, having seen the CCTV evidence, conceded that the head injury could have occurred not when the deceased was stamped on but when he fell back and hit his head on the floor in consequences of the punches to his head.[23]The appellant was arrested again and handed in a prepared statement in interview in which he reiterated that he knew the deceased as a drug user with a violent reputation and he had acted in self-defence. The appellant gave evidence as to his character and background. He gave evidence consistent with that which he had given in the previous trial. He did he not dispute the CCTV evidence. He denied intending to cause really serious harm. He did not recall stamping on the deceased.[24]In cross-examination, he denied he was angry with the deceased and maintained that he was fearful of imminent attack. It was put to him that the CCTV footage did not support his case that the deceased threatened him. He was asked whether the punches, the push and the stamp were all together. He did not recall.[25]The grounds of appeal are these. In respect of the application for leave in trial 1, first, there are a number of criticisms of Recorder Carus' directions. He had failed to direct the jury properly on the following issues:(1) The separation of roles between judge and jury.(2) The burden and standard of proof.(3) Self-defence.(4) Good character.(5) Adverse inference from silence at interview.[26]Secondly, there was an application for leave to adduce fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968, namely a transcript of the cross-examination of Dr Du Plessis at trial 2. Leave was sought in order to demonstrate that this evidence was contrary to the direction given to the jury at trial 1. It showed that in all likelihood the really serious harm was not caused by the applicant stamping on the deceased's head. As a consequence, the jury never considered whether at the time the brain injury was caused the applicant intended to cause really serious harm.[27]The Crown's response to this application was that, firstly, so far as concerned the criticisms of Recorder Carus' directions, they were out of time and there was no good reason to extend time. In any event, the criticisms failed on the merits. Secondly, as to the fresh evidence, that should not be admitted; it was not capable of undermining the safety of the section 18 conviction. As the Crown put it, the applicant's argument was based on a tenuous and artificial construction of the attack, which was directly contradicted by the applicant's own evidence. The prosecution case was that the push to the ground were all part and parcel of the same attack; they were one fluid movement.[28]So far as concerns the grounds of appeal in trial 2, they were two-fold: (1). The judge failed either(a) to exclude the evidence of the section 18 conviction or(b) to "read down" section 74(3) of PACE so as to impose an evidential rather than a persuasive burden of proof on the appellant in respect of the issues of self-defence and intent. (2). The evidence suggests that as a consequence of (a) or (b) no jury has ever been sure that at the time the fatal injury was caused the appellant intended to cause really serious harm. That offended against the right to a fair trial under Article 6 ECHR.[29]The Crown in response submitted that the judge's rulings were correct for the reasons he gave and the judge gave a scrupulously fair direction concerning the evidence of Dr Du Plessis. Overview[30]Standing back from this matter and applying common sense, we begin by observing that, as was accepted by the appellant in his own evidence, this was a single incident. In trial 2 the Recorder of Manchester, at page 53 F-H of the transcript, recorded the appellant's evidence as follows:
"In cross-examination, at the earlier trial, as to stamping, he said: 'It's not correct that he was defenceless and motionless on the floor. It was all one fluid movement. The footage shows that'. He was later to say; 'It just happened so quick'."
[31]The CCTV footage, which we have watched and carefully watched, shows precisely that. The total time involved in the attack was distinctly less than a minute. It seems to us, with all respect to the argument to the contrary, that it is plain beyond peradventure that the intention throughout was to cause really serious injury. There were a number of punches, not a single punch, immediately followed by the stamping. In those circumstances, it matters not a jot whether the subsequent epilepsy and death were caused by the punches leading to the deceased banging his head on the floor or the stamping which followed. It is manifest that death was caused by the appellant's attack on the deceased with the intention of causing really serious harm. It is equally manifest that this is not a case of self-defence. One only needs to look at the CCTV.[32]The whole edifice of the application and appeal is constructed, with respect, on the proposition that there is or may be a difference between the appellant's intention when punching the deceased and when literally a moment later stamping on his head. That proposition is belied(1) by common sense in dealing with this single incident of the shortest duration;(2) CCTV;(3) the appellant's own evidence. It is instead amply apparent that the stamp reflected the appellant's intention throughout that briefest of incidents.[33]For completeness, it may be noted that the question of separating out the punch from the stamp on the basis of Dr Du Plessis' evidence was a matter canvassed in terms by the Recorder of Manchester in trial 2. It is unnecessary to read out of passages but they appear in the transcript of the Recorder of Manchester's summing-up at pages 20 - 22. Nonetheless the jury convicted.[34]We therefore view both the application and the appeal, despite Mr Johnson's valiant submissions, with significant misgiving. There has been much ado but going nowhere.[35]We turn to deal, again in deference to the arguments advanced, so far as necessary, with the detailed grounds of appeal. Trial 1[36]As already foreshadowed, the application here falls under three broad grounds which it is convenient to take in the following[37]The application is to adduce evidence into the application for leave on trial 1 the evidence from Dr Du Plessis already summarised in trial 2. In order to do so it is necessary for the applicant to satisfy the requirements of section 23 of the Criminal Appeal Act 1968. That section provides as follows:
"(1)For the purposes of an appeal, or an application for leave to appeal ... the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (c)receive any evidence which was not adduced in the proceedings from which the appeal lies. ... (2)The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to— ... (b)whether it appears to the Court that the evidence may afford any ground for allowing the appeal."
Plainly, if the evidence is clearly not going to affect the outcome of the appeal, there is no apparent reason for admitting it.[38]For the reasons already expressed, on any sensible or realistic view of the evidence, whether the catastrophic brain injury was caused by the deceased hitting his head on the floor following the punches or by the stamp in the course of this single incident, is neither here nor there. In the circumstances, the introduction of Dr Du Plessis' evidence into trial 1 is refused. There is no arguable basis for the submission that it casts doubt on the safety of that conviction, the relevant test under R v Pendleton [2002] 1 Cr App R 34. Extension of time[39]A substantial extension of time measured in years is required to permit a challenge now to the directions given in the summing-up in trial 1. It is common ground that there was no application for leave to appeal following that trial. It is further common ground that that was a considered decision.[40]We can accordingly see no proper basis for granting an extension of time now to challenge the directions given in 2012. Put another way, there is no injustice whatever in now refusing to permit that question to be reopened. The application for an extension of time is accordingly refused. Criticisms of the summing-up in trial 1[41]We add for completeness that we are, with respect, unimpressed with the criticisms of the summing-up in trial 1. It is fair to say that it was not a model summing-up but such complaints as can be made fall well short of casting any doubt on the safety of the conviction. It is not without significance that trial counsel then instructed neither raised any objections at the time nor sought leave to appeal. Conclusion[42]The application for leave to appeal in respect of trial 1 is refused. Trial 2[43]The appeal here falls conveniently under two headings. To recap:(1) The Recorder of Manchester erred in failing to exclude the evidence of the section 18 conviction or to read down section 74(3) of PACE so as to impose an evidential rather than a persuasive burden in respect of self-defence and intent (ground 1).(2) In consequence, "no jury has ever been sure that at the time the fatal injury was caused the appellant intended to cause really serious harm". The right to a fair trial under Article 6 ECHR was thus infringed (ground 2).[44]There is, again with great respect to Mr Johnson's valiant efforts, no substance whatever in either ground. Ground 1[45]As to this ground, the judge admitted the evidence of the section 18 conviction pursuant to an express statutory provision, namely section 74(3) of PACE. Section 74(3) provides as follows:
"In any proceedings where evidence is admissible of the fact that the accused has committed an offence, ... , if the accused is proved to have been convicted of the offence— (a)by or before any court in the United Kingdom ... ... he shall be taken to have committed that offence unless the contrary is proved."
[46]The Recorder of Manchester gave two rulings in this regard. In ruling 1 he dealt in essence with the attack on the previous summing-up. We turn briefly to that ruling. The Recorder referred to the fact that the defendant was not precluded from challenging the correctness of a previous conviction albeit that the burden of proving that he was wrongly convicted rested on him. He noted that the application to exclude the evidence of the conviction was founded on section 78 of PACE. The submission made by Mr Johnson and recorded by the Recorder of Manchester was founded on the assertion that the conviction in trial 1 was unsafe and therefore the evidence of that conviction ought to be excluded.[47]Mr Johnson had very fairly acknowledged that his application was novel. As the Recorder of Manchester remarked, it required him, in effect, to step into the shoes of the Court of Appeal and to pass judgment of the safety of the defendant's conviction by a court of competent (and coordinate) jurisdiction. The Recorder underlined that it required him to do so against a history of the defendant's omission to lodge an appeal against his conviction either to the single judge or before the full Court of Appeal.[48]The defendant had also not sought leave to appeal out of time. The Recorder noted that following the conclusion of trial 1 legal advice had been taken on the prospects of a successful appeal. The Recorder said this:
"Thus, the defendant now seeks a finding in this court that his conviction was unsafe, when he has consistently declined to make his challenge in the proper way before the Court of Appeal. In my judgment, such a course amounts to an abuse of the process of this court and, on that ground alone, the application should be refused and I do refuse it."
[49]It is fair to emphasise that nothing said by the Recorder is a criticism of Mr Johnson, who had no doubt come into the case relatively shortly before trial 2 and who did not appear in trial 1, and nor is anything we say a criticism of him - but the Recorder rejected the approach adopted in those trenchant terms.[50]If, however, the Recorder of Manchester was wrong in that regard, then he went on to consider the criticisms of the summing-up in trial 1 on their merits. It is unnecessary for us to repeat in detail the observations he made; suffice to say he considered each of the criticisms and rejected them all.[51]The transcript concludes at page 6 letters E to H with the following observations:
" ... I remind myself that, in the earlier trial, as here, the jury had the benefit of clear CCTV footage depicting the incident, in which the defendant punched and stamped on the deceased. The defendant has sought to deploy section 78 to challenge in this court the safety of his conviction by a jury in February 2012, and thereby to achieve exclusion of evidence, which, by statute, is plainly admissible. The application is bold in the extreme and, in my judgment, wholly unsustainable. If it is legitimate to mount such a challenge, in the absence of an appeal to the Court of Appeal (and, in my judgment, it is not), the application fails on its merits. The conviction was not unsafe and the evidence of it may properly be admitted."
With great respect, that ruling was exemplary.[52]Returning to ruling 2 given by the Recorder of Manchester, in essence he was dealing there with Mr Johnson's submissions as to the reverse burden and Article 6. Before the Recorder of Manchester, as before us, Mr Johnson had referred to the decision of the House of Lords in R v Lambert [2001] UKHL 37; [2002] 2 AC 545. The Recorder of Manchester said this at transcript page 3 letters E to F:
"Lambert remains good law, but it is well settled that a reverse onus provision, such as that created by section 74(3), will not inevitably give rise to a finding of Article 6 incompatibility, the court has to focus on the particular circumstances of the case and to strike a reasonable balance between the general interests of the community and the protection of the fundamental rights of the individual. The relevant principles were summarised by Lord Bingham in the case of Sheldrake v DPP [2004] UKHL 43; [2005] 1 AC 264 ... "
[53]At page 4 of the transcript, the Recorder of Manchester observed that he had the guidance of Lord Bingham "uppermost in my mind". He went on to say this at page 4E to F of the transcript:
"The purpose of section 74(3) is to avoid re-litigation of issues of criminal liability already determined by a court of competent jurisdiction, the provision contains within it a safeguard for the defendant, allowing him to rebut the presumption against him ..."
[54]The Recorder of Manchester then looked at the facts and circumstances of section 74(3) as applied to the present case. In doing so, he formulated the manner in which he would be leaving Dr Du Plessis' evidence to the jury for their consideration. He did so with conspicuous fairness and clarity and foreshadowed what he was doing at page 6 of the transcript letters A to D. He concluded by saying that, applying Sheldrake, the application of section 74(3) was both reasonable and proportionate and not incompatible with Article 6.[55]Again, if we may respectfully say so, the Recorder of Manchester's ruling was impeccable. In our judgment, there is simply no good reason for either excluding the conviction in trial 1 from the evidence at trial 2 or for reading down section 74(3). As for admitting the evidence, it is unnecessary to go beyond the observation of Lord Judge CJ explaining the legislative rationale for section 74(3) and the safeguards it contains (see R v C (JW) [2010] EWCA Crim 2971; [2011] 1 WLR 1942 at [10]-[11]; R v Clift; R v Harrison [2012] EWCA Crim 2750; [2013] 1 Cr App R 15 at [32]-[35]). At [36] of Clift and Harrison, Lord Judge CJ said this:
"There is, in addition, the separate safeguard under s.78, which permits the judge to exclude the evidence. Fairness, of course, runs both ways: the exclusion of admissible evidence may well be unfair to the prosecution. Without seeking to curtail the valuable judicial weapon against unfairness in the criminal justice system embodied in and exemplified by s.78, it would be something of a novel proposition for the exercise of this discretion to enable the court to exclude evidence when its admissibility stems from the enactment of a statutory provision deliberately designed to permit the evidence to be adduced. Accordingly, the evidence of the earlier convictions cannot be excluded on the basis of some nebulous sense of unfairness. If s.78 were used to circumvent a clear statutory provision for no better reason than judicial or academic distaste for it, the discretion would be improperly exercised."
[56]For the reasons already canvassed, the evidence of Dr Du Plessis in the second trial does not even come close to justifying the exclusion of the section 18 conviction nor do the criticisms now sought to be advanced of the summing-up in the first trial.[57]For completeness, before us today, Mr Johnson also sought to place some weight on the jury question recorded in the transcript of trial 2 at page 97, where a jury note raised questions as to the legal difference between murder or manslaughter, the burden of proof, the balance of probability and the definitions of intent, GBH (that is really serious injury) and murder.[58]Again, with respect, we do not read into those questions anything like the significance which Mr Johnson sought to place on them. As experience shows, they could have been related to any number of enquiries from perhaps one or any number of jurors and it certainly does not cause us to reconsider the views already expressed in this judgment as to admitting the evidence of the conviction in trial 1.[59]As to reading down section 74(2), the argument, with respect, faces insuperable hurdles. There is the world of a difference between imposing a persuasive burden on a defendant in the course of a first trial and before any jury verdict has been obtained on the one hand and requiring a defendant to prove that he did not commit the offence of which he has already been convicted by a jury, satisfied to the criminal standard by the prosecution of his guilt. Authorities such as Lambert (supra) are thus far removed from the considerations to which section 74(3) of PACE gives rise.[60]In any event, as was made clear in the subsequent House of Lords decision in Sheldrake (supra) by Lord Bingham of Cornhill at [21] and [31]:
"21. From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption ... The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. ... 31. The task of the court is never to decide whether a reverse burden should be imposed on a defendant, but always to assess whether a burden enacted by Parliament unjustifiably infringes the presumption of innocence ... "
[61]In our judgment, applying those passages, there is the most ample justification and rationale for the provisions of section 74(3) of PACE and no justification whatever for reading them down. Ground 2[62]This ground fares no better. Given the realities of the incident, it is abundantly plain that both juries were satisfied and rightly so, that, at the time the fatal injury was caused, the appellant intended to cause the deceased really serious jury. It is simply fanciful to seek to divide the appellant's intention as counsel's submissions seek to do. In any event, as already underlined, the jury in the second trial had the opportunity to do so (summing-up at pages 20 to 22) and nonetheless reached the verdict they did. Conclusion[63]For the reasons given, with respect to Mr Johnson's submissions, we dismiss the appeal in trial 2. We reiterate that even if there had been an error on the Recorder of Manchester's part, which there was not, we would have had no hesitation whatever in concluding that the conviction was safe.[64]We cannot, of course, by our decision do anything to undo the tragedy which occurred; we understand that. We simply deal with the legal issues here.

order

(1) Fresh evidence.(2) Extension of time.(3) Criticisms of the summing-up. Fresh evidence