Hewlett, R. v [2016] EWCA Crim 673

[2016] EWCA Crim 673Case No 201406045/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19th April 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE JEREMY BAKER
MR JUSTICE GARNHAM
Between
R E G I N ACrownv
Between
KARL RICHARD HEWLETT
Computer Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)

NON-COUNSEL APPLICATION

[1]MR JUSTICE JEREMY BAKER: In November 2014 the applicant stood trial at Guildford Crown Court in relation to a three-count indictment. At counts 1 and 2 he was charged with racially aggravated intentional harassment, alarm or stress contrary to section 31(1)(b) of the Crime and Disorder Act 1998. At count 3 he was charged with witness intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994; albeit that this was subsequently amended to allege a count of attempted witness intimidation. On 29th November 2014 he was acquitted by the jury of count 1, but convicted of counts 2 and 3. Thereafter the trial judge sentenced him by way of a 12 month community order with a requirement to complete a total of 200 hours of unpaid work.[2]Counsel representing the applicant at trial submitted grounds of appeal in support of an application for permission to appeal against his convictions. The application was considered and refused by the single judge. This is the renewed application for leave. The applicant, having dispensed with the services of trial counsel, whom he criticises, has submitted his own 42 page document in support of the renewed application.[3]The circumstances giving rise to the convictions were that the applicant and complainant in relation to count 2, Pauline Walpole, had been long-term neighbours in a housing complex on Preston Lane, Tadworth. Whereas the applicant is an owner-occupier of his home, Mrs Walpole, is a tenant of the Raven Housing Trust. It is apparent that there has, for many years, been a dispute between the applicant and Mrs Walpole, concerning a boundary fence which has been erected between their two properties. The basis of the prosecution's case was that, on 1st April 2014, a verbal argument took place between the applicant and Mrs Walpole, in the course of which it is alleged the applicant was abusive to Mrs Walpole and called her "pikey". It is alleged that this was witnessed by an employee of the Housing Trust, namely Mario Ajauro who subsequently made a witness statement concerning it. It was the prosecution's case, at count 3, that, on 14th April 2004, the applicant spoke to Mario Ajauro in abusive terms, and in particular sought to get him to withdraw his witness statement by shouting at him in an aggressive manner:
"I want you to tell the truth - you're a fucking liar"
. This being repeated on about two further occasions during the course of the day.[4]The case presented on behalf of the applicant, in relation to count 2, was that he had not been verbally aggressive towards Mrs Walpole, and that although he may have called her a "gypsy", he did not call her a "pikey". In relation to count 3 the applicant's case was that Mario Ajauro had provided a false account of the events which took place on 1st April 2014 in his witness statement, namely one which supported Mrs Walpole's account, and that subsequently on 14th April 2014 the applicant had politely requested Mario Ajauro to alter his statement in order to provide a truthful account of what had occurred. In particular he had never been aggressive towards him, and never called him "a fucking liar."[5]In the course of trial, at the conclusion of the prosecution's evidence, an application was made on behalf of the applicant that there was no case for the applicant to answer in relation to count 2, on the basis that the word "pikey" was not capable of referring to a particular racial group. This application was rejected by the trial judge who ruled that the term was capable of referring to a particular racial group, namely Romany gypsies.[6]The original grounds of appeal were five-found. Firstly, that the trial judge should have acceded to the half-time submission that there was no case to answer in relation to count 2. Secondly, that the conviction at count 3 was unsafe, on the basis that telling someone to tell the truth way incapable of comprising the offence of witness intimidation. In this regard it was submitted that the jury received insufficient legal directions from the trial judge. Thirdly, that the trial judge unnecessarily intervened in order to prevent cross-examination of Mrs Walpole in relation to the history of the dispute between her and the applicant. Fourthly, that the trial judge unnecessarily intervened in relation to cross-examination of Mario Ajauro, and in particular in relation to the differences between his oral evidence and a previous witness statement. Lastly, that the trial judge unnecessarily intervened in relation to the calling of a defence witness, namely Priscilla McManus, and thereby inappropriately permitted the prosecution to call evidence in rebuttal.[7]The offence of racially aggravated intentional harassment, alarm or distress was introduced by the Crime and Disorder Act 1998. Section 28 of which provides the definition for racial aggravation in relation to offences under section 1(1)(b) of 1989 Act.

(a) provides that:

"(1)An offence is [racially or religiously aggravated] for the purposes of sections 29 to 32 below if— (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a [racial or religious group]; or. (b) the offence is motivated (wholly or partly) by hostility towards members of a [racial or religious group] based on their membership of that group."
[8]Sub-section 4 defines racial group as meaning:
"... a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."
[9]The Oxford English dictionary defines the word "pikey" as referring to a "gypsy or traveller", and in Commission for Racial Equality v Dutton [1989] QB 783, it was held that Romany gypsies are to be recognised as a racial group on the basis of their ethnic origin. In this regard it of course mattered not whether Mrs Walpole was in fact a member of this racial group, provided that there was sufficient evidence that the applicant presumed she was a member of that group. In fact it was the applicant's case at trial that he believed that Mrs Walpole was a gypsy, and indeed referred to her in those terms. Moreover, he acknowledged that:
"If you call a person a pikey, that would be racist."
[10]In relation to the first ground of appeal, it is clear that the trial judge was correct to refuse the submission of no case to answer in relation to count 2, on the basis that Romany gypsies are capable of being recognised as a racial group on the basis of their ethnic origin, and that if the jury accepted the evidence of Mrs Walpole and Mario Ajauro, that the applicant had called Mrs Walpole a "pikey", this was capable of being a pejorative reference to Romany gypsies. Thereafter the trial judge provided the jury with appropriate legal directions as to the matters upon which they had to be satisfied in order to convict the applicant of count 2, such that this ground of appeal is unarguable.[11]In the course of cross-examination the witness Mario Ajauro stated, that although the applicant had said the words attributed to him, they had not in fact had the effect of intimidating him. It was in these circumstances that the count was amended to one of attempted witness intimidation, in accordance with what had been expressed by Thomas LJ (as he then was) in R v NZ [2013] 2 Cr App R(S) 25. In relation to the second ground of appeal there was a clear issue of fact for the jury to determine as to the words spoken by the applicant. However, in the event that the jury was sure that the applicant had used the words alleged by Mario Ajauro, then provided the jury was also satisfied that the applicant had the requisite intent under section 51(1)(c), the words were clearly capable of comprising the offence of attempted witness intimidation. Once again the trial judge gave appropriate directions as to the elements of the offence which had to be proved by the prosecution between pages 8A to 10A of the transcript, and supplemented this with a written route to verdict which was correct in law. In particular he emphasised the need for the jury to be satisfied that not only were the words used by the applicant those attributed to him Mario Ajauro, but that the applicant thereby intended to cause the course of justice to be obstructed, perverted or interfered with. Accordingly this ground of appeal is unarguable.[12]In relation to the remaining grounds not only do we have the benefit of trial counsel's original grounds of appeal, but also a written respondent's notice, and, following waiver by the applicant, a written response to grounds of appeal by trial counsel.[13]In relation to the third ground, although the dispute between the applicant and Mrs Warpole concerning the boundary fence provided the context for the events which happened on 1st and 14th April 2014, it was unnecessary for extensive evidence to be provided in relation to it. We are satisfied from having read the summing-up, and other documentation in this case, that the defence were allowed to appropriately explore its history. However, we are equally satisfied that the trial judge was right to intervene to prevent the jury from being burdened with overly long explanations of issues which were not at the heart of the matters which they had to determine.[14]In relation to the fourth ground, the main focus of cross-examination was to highlight the fact that in contrast with his evidence at trial, in Mario Ajauro's previous witness statement, he had not alleged that the applicant used the word "fucking" in the course of their verbal exchanges. We are satisfied that this matter was adequately dealt with before the jury and in particular at page 20D-E of the transcript, the trial judge specifically reminded the jury as to the omission of this word from Mario Ajauro's previous witness statement.[15]In relation to last of the original grounds of appeal, the witness Priscilla McManus was the sister of the applicant who, when she gave evidence, stated that she had been present during the course of the incident on 1st April 2014, and provided an account which supported that of the applicant. It would appear that neither Mrs Walpole nor Mario Ajauro had been cross-examined as to the presence of the applicant's sister. It was on this basis that the trial judge permitted the prosecution to recall those witnesses so that this matter could be dealt with. We do not consider this was inappropriate, this matter ought to be explored in cross-examination, and the fact that prior to recalling those witnesses the prosecution may have been provided a copy of the sister's witness statement does not seem to us to have adversely effected the applicant's position.[16]Although we, as was the single judge, are satisfied that there is no merit in any of the grounds raised by trial counsel, we have also considered the contents of the written document provided by the applicant in support of his application to renew. We note that the vast majority of this document comprises a detailed history of the dispute between the applicant and Mrs Walpole concerning the boundary fence between the properties. Moreover, there is also detailed account of more recent events concerning the dispute post conviction. However, in addition, complaint is made about the conduct of trial counsel and the judge. In relation to the latter, much is repetitious of the original grounds of appeal. However, it is also asserted that the trial judge was biased. In this regard it is pointed out that in the course of his summing-up the trial judge referred to the fact that the birthday of Mrs Walpole took place during the course of the trial. We have seen the reference to that in the course of the summing at page 12E-F of transcript. This was a reference said in passing to the fact that, although Mrs Walpole had been 74 years of age at the time of the alleged offences, she was now 75 years of age. We see nothing wrong in the reference to the fact that she had a recent birthday, nor was it said in terms that would have engendered any sympathy for her on the part of the jury. We have carefully read the summing-up and are quite satisfied that there is no evidence of bias on behalf of trial judge arising from this or any other matter raised by the applicant.[17]In relation to the criticisms of trial counsel it is suggested that he made insufficient effort to investigate and place the history of dispute about the boundary fence before the jury. As we have already observed, the history of the dispute concerning the fence was not at the heart of this case, and we are satisfied that sufficient detail of it was provided to the jury in order for them to be able to set the events for the 1st and 14th April 2014 in their proper context. We do not consider there are any arguable grounds for criticism in relation to the conduct of the trial by counsel who was then instructed to represent the applicant, arising out of this, or any other matter raised by the applicant.[18]In these circumstances, we do not consider that either in the application or in the more recent documentation provided by the applicant in support of his renewed application, are there any arguable grounds of appeal and accordingly this renewed application is refused.[19]In view of our decision, we have decided that this is an appropriate case to make an order under section 18(6) of the Prosecution of Offences Act 1995 for the applicant to pay the reasonable costs of the transcript in this case, and we make the order in sum of £40.