The Criminal law is one of the most flexible and diverse areas within the legal profession. This is a trial book, which focuses on a charge of assault under the Offences Against the Person Act 1861.
This case was about an assault, which took place outside a restaurant in convent garden. This was exacerbated when the complainant, his brother and two women all travelled back home after having a night out. After they had finished their night out they all made their way home in a taxi. They needed to pass the restaurant in order to make it home safely. The taxi pulled up across the road from the restaurant and when they arrived they noticed three Asian men standing outside. They all got out of the car, the brother and one of the girls got out the left side and both the complainant and the other girl got out the left on the right. The brother then paid the driver, there were cars passing and both the complainant and the other girl crossed the road making their way over to Royals. The girl stumbled and fell to the pavement so the complaint helped her up. The defendant went over to the complaint and started on him. The complainant asked the defendant to stay away so the defendant then went back into the restaurant. Shortly after this he re-emerged out of the restaurant and attacked the complainant from behind, with an object known to be coins, wrapped in a white cloth, causing three wounds in the back of his head
You don’t expect to get jumped on when you help a friend off the floor but this was an occasion in which the accused took his chances to make an attack on a civilian. Whether by pre meditation or not he did not seem to want to give up his attempts to cause harm as he took a second strike at the complainant. This is a case that this trial book aims to explore not only on the face of it, but with a particular focus, this being with a specific emphasis placed on exploring how the prosecution could not seem to make out their case. Under the judicial system it is dictated to the Crown that they must prove their case in order to secure a conviction however, one knows that this is always going to be a difficult task when the cards are not on your side. Of course even when a trial starts off badly it is true that one can always attempt to come back from it however when we see a continually deteriorating regime developing throughout, you begin to wonder if there is doubt that they will prove their case and this book intends to show hat analogy.
The trial was heard in Southwark Crown Court, 1 English Grounds off Buttlebridge Lane, London, SE1 2HU. This was heard by his honour Judge Morris QC on the 16th January 2012. The trial was held in court 3, it lasted for three days and was concluded on the 18th January. Close observations were carried out throughout this trial there will be commentary on both the prosecution and defence case respectively. After first considering the preliminary matters it shall then deal with each day in turn followed by the examination into each witness. For the purposes of this trial book all parties (including the judge) involved in these proceedings have had their names codified.
Case Ref: 176843
All original names have been hidden to protect the identity of the participants in this case.
Abbildung in dieser Leseprobe nicht enthalten
The facts of the case
Past history leading to the events
The defendant with whom I shall call Rusty Savage began his contract of employment at the Royals restaurant in Covent Garden in 2008. He was the headwaiter and was in charge of the restaurant. The complainant’s family knew the owner of the restaurant Mr Patti. This led to both the defendant and the complainant getting to know each other; the accused also got to know him as R. In the past R and his family were given free food. On a later occasion the defendant refused him food he wanted for a party, which he was going to be having so the complainant became angry and sent a note to Mr Patti who through it in the bin. This issue unfolded and encapsulated into a number of issues from August leading up to the events in November 2009.
This eventually led up to serious harassment of which the complainant was previously convicted. He used abusive language and on several occasions he would approach the restaurant and would through rubbish, nappies, bin bags and this included spitting, which occurred frequently. On 28th August the complainant grabbed the front of the defendant viciously and a friend of the complainant threatened him with a knife. The complainant was charged for harassment from 18th to 31st August 2009. On a separate occasion two people, one of whom was the Complainant, entered the restaurant they were spitting, throwing items and using laser pens. Since August that year both the complainant and his friend were harassing the defendant and staff by throwing eggs at the windows and hailing verbal abuse, by shouting paki, as the two of them walked past. On 20th August there was another occasion when they were hanging around, shouting, swearing and making racial insults. On the 1st October the complainant appeared shouting, “you got the police to raid me three times, you lost, you fucking wanker”. The complainant was convicted of harassment for his aggressive manor towards the defendant. He racially abused the defendant and told him to go back to his own country; he spat at windows, threw rubbish and had been spotted making racial insults to staff. On the 28th August 2009 a group of friends threatened to punch the defendant and they were grabbing and swearing at him.
The complainant’s version of events on the 28th November 2009
On the early evening of the night of 27th November 2009 the complainant accompanied by his brother and two other women were having a night out. They entered several pubs and had a number of drinks between them. The complainant had 8 pints to drink. After they had finished their night out they all made their way home in a taxi. The complainant lives in a block of flats situated at the back of the Royals restaurant. This meant they needed to pass the restaurant in order to make it home safely. The taxi pulled up across the road from the restaurant and when they arrived they noticed three Asian men standing outside. One of whom was the defendant. They then proceeded to get out of the car, the brother and one of the girls got out the left side and both the complainant and the other girl left on the right. The brother then proceeded to pay the driver, there were cars passing and both the complainant and the other girl crossed the road making their way over to Royals. The girl stumbled and fell to the pavement so the complaint helped her up, it was at this point that the defendant went over to the complaint and started on him by pushing him. The complainant asked the defendant to stay away so the defendant then went back into the restaurant. Shortly after this he re-emerged, approached and attacked the complainant from behind, with an object known to be coins, wrapped in a white cloth, 2-3 times causing three wounds in the back of his head. The complainant had no recognition of what happened after this as he fell to the ground and passed out.
The defendant’s version of events on the 28th November 2009
On the day of the 27th of November 2009 the defendant travelled to the royals restaurant in Covert Garden by bike to start his shift. His shift started at 6.pm in the early evening, the restaurant closed at 11pm that same evening. After this time the defendant was waiting outside the restaurant for Mr Patti, the owner of the restaurant to arrive. This was because he was the only person with a key to lock up. The defendant was wearing a green jacket. The defendant did not see the taxi arrive but he saw a girl slip and fall to the ground and she appeared drunk on the floor. The defendant offered to help the girl off the floor and she replied ‘yes please’ then the accused saw the complainant, who turned around and said in an aggressive manner, ‘don’t touch her’. Savage stepped back and the complainant then proceeded to punch the defendant on the shoulder and the back of his head, he was shouting abuse and calling him a paki and holding onto his cloths. Then the complainant’s brother came and punched the defendant so he protected himself. He was short of breath there was swearing throughout and when the fight had stopped the jacket had disappeared i.e. this was no longer visible on him after the incident. The defendant then made an attempt to reach for his bike but was unsuccessful, as the complainant then came at him for the second time, this time from behind and kicked him again. When Savage turned around the complainant fell to the ground near the road and there was blood on the floor. The accused did not cause him to fall and after this he panicked, ran round the corner and hid behind the building. When the police turned up they called him back over and he showed himself and was then arrested and taken to the police station. At this point the defendant was wearing a black shirt with a tier just below the left side, this was present when he arrived at the police station, which the complainant and his brother had made previously.
The disputed facts
1) The girl stumbles and falls to the ground, the complainant helps her up and that the defendant went over to the complainant and started on him.
2) The defendant went back into the restaurant and then re emerged out of Royals to approach and attack the complainant from behind and hit him in the head with an object (coins wrapped in a white cloth)
3) The defendant did not see the taxi arrive
4) The accused offered to help the girl off the floor
5) The defendant saw the complainant turn around at him and say aggressively not to touch the girl. The complainant proceeded to punch the defendant on his shoulder and the back of his head.
6) The complainant’s brother came and attacked the defendant so he defended himself.
7) The defendant attempted to reach for his bike and the complainant came at him for a second time, this time from behind and he kicked him. When the defendant turned around the complainant fell to the ground near the road.
The Other evidence
Exhibit 1 picture/photos
Exhibit 2 tared shirt
The offence charged
On the 28th November 2009 the defendant was charged with the imprisonable offence of unlawful wounding under section 20 of the Offences Against the Person Act 1861. It states as follows
“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument shall be guilty of an offence triable either way and being convicted thereof shall be liable to imprisonment for five years”
Is this charge of Unlawful wounding a correct one?
The Actus Reus requires that the defendant either inflicted grievous bodily harm or wounded the victim.
It was the accused that went over and approached the complainant by pushing and starting on him. This does provide the complainant with an opportunity to be able to argue that this at least put him in fear of being attacked for the purposes of constituting an assault. The case of R v Ireland and Burstow (1997) stated that there is no need for an accompanying act as long as the victim fears an immediate infliction of force however, the House of Lords stated that the fear must be of immediate fear of violence. It can be argued at the outset whether the pushing from the accused would suffice for this. Moreover there does not seem to be any question that when the accused approached the victim for the second time and attacked him, with an object leaving him three wounds, that this amounted to a wounding and a grievous bodily harm (GBH) offence. Therefore it would appear to be that the Actus Reus of this section 20 offences is satisfied.
In this case the Mens Rea for a section 20 OAPA 1861 offence is defined by the word maliciously. In the case of R v Cunningham the court stated that maliciously meant intentionally or recklessly. Further the court said in R v Mowatt 1967 that there is no need to intend or be reckless as to causing GBH or wounding. The accused need only intend or be reckless that his or her acts could have caused some physical harm. As Lord Diplock said “it is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character might result”. This is upheld in R v Grimshaw 1984 as the defendant had the Mens Rea because she had at least foreseen that the victim might suffer some harm. The leading authority on this point is now governed by the House of Lords judgment in R v Savage, DPP v Parmenter 1992. Moreover the divisional court decision in Director of Public Prosecutions v A (2000) highlighted that the defendant is only required to have foreseen that some harm might occur, not that it would occur.
Given this to be the reality of it one may certainly come to the conclusion that when the defendant was preparing to strike the complainant with an object (now known to be coins wrapped in a cloth), that he was clearly aware that this may cause some harm and that this was more likely than not to occur. Therefore on this initial analysis the Mens Rea for the offence appears to be satisfied.
In conclusion the charge of wounding contrary to section 20 the Offences Against the Person Act 1861 appears to be justified. Under the code for crown prosecutors the burden of proof will rest on the prosecution, to prove beyond a reasonable doubt that the defendant caused the complainant to apprehend the injuries commissioned. If in his defence the accused claims that he acted in self defence, which is the case here, then the prosecution must prove that he was lying or that although he honestly believed that he was about to be assaulted by the complainant, the force used to repeal him went beyond what was reasonable in the circumstances.
Brief for the Prosecution
BRIEF FOR THE PROSECUTION
R v Savage
Case Ref: 15983
Counsel has here with
2) Committal Statements
3) Defendants antecedents and previous convictions
4) Witnesses previous convictions
5) Statement of defence in accordance with the Criminal Procedure and Investigations Act 1996
Counsel is instructed in the prosecution of the above-named defendant who faces the one count shown on the indictment. The facts emerge clearly from the statements. The reviewing lawyer takes the view that a plea to s 20 GBH of the Offences Against the Person Act 1861 would not be acceptable.
Counsel will note that one of the prosecution witnesses have previous convictions. The defence must be told of these whether or not they ask for them in accordance with the decision in R v Collister and Warhurst (1995) 39 Cr App R 100 and the Attorney General’s Guidelines on Disclosure, although of course their use in the trial will be dependent on getting permission from the Judge under s100 of the Criminal Justice Act 2003.
It was not possible to access a copy of the indictment transcript so I have made every attempt to follow the standard format, to incorporate the information I observed from this case respectively.
Form of Indictment No: 01394
(Criminal Procedure Rules, Part 14)
IN THE CROWN COURT AT Southwark
THE QUEEN v Savage
Charge as follows
STATEMENT OF OFFENCE
Unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861
PARTICULARS OF OFFENCE
Rusty Savage on or about the 28th November 2009 unlawfully and maliciously wounded [or inflicted grievous bodily harm on] Mr Curtain
Officer of the court
 Blackstone’s Criminal Practice, paragraph B2.37 and B2.38, p 204, 241
 C, Elliott & F Quinn, Criminal Law, 7th edn, Pearson Longman, 2008, pp 138, 140
 ibid p. 147