Practice and Procedure

R v P (2003)

PUBLISHED May 13, 2003

A conviction for wounding with intent was safe and the judge had not misdirected the jury on joint enterprise.Appeal against conviction with leave of the single judge. On 29 August 2002 at Kingston Crown Court before HH Judge Wakefield the defendant ('P') was convicted of violent disorder, actual bodily harm and two counts of wounding with intent. On 4 October 2002 he was sentenced to a total of three years' detention. Six co-accused were convicted of at least two of the counts contained in the same indictment. On 3 April 2002 four men ('the victims') were going out for the night and went to the station to catch a train. When the train pulled into the station the defendants were on it with two girls and a bottle was thrown from the window. The defendants were the worse for drink and were roaming the carriage, some of the defendants approached the victims but there was no actual violence on the train, although comments such as "lets cut them" and "I'm going to smash you" were shouted. One of the defendants smashed a bottle and concealed the glass ready for a fight. When the victims got off the train the defendants followed them. CCTV footage showed P holding a bottle and one of the girls gave evidence that she had tried to take a bottle from P's hand. One of the defendants was heard to shout "glass them" and one of the victims was hit on the back of his head, kicked and punched. One of the victims appealed for calm and was surrounded and pushed from the station, P was seen on CCTV at the forefront of the group. The incident continued outside the station where one victim was slashed on the side of his face and one was punched, kicked and suffered a severe laceration to his cheek, which severed his ear. The prosecution was brought on the basis of joint enterprise. At the conclusion of the trial the judge summed up and dealt with the question of joint enterprise in detail and no complaint was made to that aspect of the summing up. The judge went on and directed the jury that a party was a participant and party to joint enterprise as he joined in, even if the most serious injury had been suffered at that point, provided the necessary intention and knowledge was present. P appealed on the grounds that the judge had misdirected the jury and as a result the conviction was unsafe. The decision in R v Grundy (1989) CAR 333, where, on a charge of causing grievous bodily harm ('GBH') with intent, a defendant was found guilty of aiding and abetting as soon as he joined in, even though he had struck a blow after the GBH had taken place, did not apply to wounding. If a wound had already been caused and then a person joined in by punching it would not make the person who joined in guilty of wounding because the wounding had already taken place.HELD: (1) The merit of the point raised was dependant on the facts of the case. In a case where the wounding offence was completed, if a person then punched the victim of the wounding, without any previous intention to join in, then the person who punched may be guilty of assault or assault occasioning actual bodily harm but may not be guilty of wounding and that was so despite the decision in R v Grundy (supra). (2) The decision in R v Grundy (supra) said no more than where an offence involved GBH there could be a series of blows amounting to an offence being committed and it was not right to take the view that once the GBH occurred one who added to the GBH was not also guilty of causing the total injury. (3) The position in relation to wounding could be different. If a wound was inflicted and then another injury, which wouldn't effect the wound, was caused then it may be that the subsequent conduct of striking a blow may not be attributed to the wounding. However, if the person was already party to the offence of wounding he would not evade being a participant if he struck a blow. (4) It was clear that the trial judge had in mind the latter example when she was summing up. P's criticism had some force because that was not made clear by the judge. However, when the substance of the case was examined there was nothing in the point. It was not suggested that P ever struck a blow against anyone. If there had been a misdirection by the judge it would not, and could not, have any relevance against P's case and the conviction was safe.Appeal dismissed.