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PAUL ANDREW COX, R v. [1998] EWCA Crim 1458 (1st May, 1998)
NO:
97/5915/Y4
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
Strand
London
WC2A 2LL
Friday
1st May 1998
B
e f o r e:
LORD
JUSTICE AULD
MR
JUSTICE JOWITT
MR
JUSTICE SULLIVAN
-
- - - - - - -
R
E G I N A
-
v -
PAUL
ANDREW COX
-
- - - - - - -
(Handed-down
judgment of Smith Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - - - -
MR
R PARDOE
appeared on behalf of the Appellant
MR
ND LICKLEY
appeared on behalf of the Crown
-
- - - - - - -
REASONS
FOR JUDGMENT
(As
approved by the Court)
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- - - - - - -
Crown
Copyright
LORD
JUSTICE AULD:
On
25th July 1997, before His Hon. Judge Darlow in the Crown Court at Southampton,
the appellant, Paul Andrew Cox, was convicted of assault occasioning actual
bodily harm, and on 21st August 1997 was sentenced to 15 months' imprisonment.
He
appeals against conviction by leave of the single judge.
The
case concerned an allegation by the appellant's former girlfriend, Sandra
Holland, that he had stalked her over a period of nine months in 1996. She
maintained that his conduct amounted to assault, culminating in her development
by September 1996 of actual bodily harm in the forms of depression, insomnia
and loss of weight.
Miss
Holland's evidence was as follows. She and the appellant were close friends
for about three and half years from August 1992 to January 1996. During that
period he lived mostly with her at her flat, to which he had a key. He also
had a home of his own. Their relationship was unhappy, ending in a violent
argument on 9th January 1996 when he struck her and was removed from her flat
by the police. Miss Holland told him that she wanted nothing more to do with
him and he began to harass her in different ways. He telephoned her
repeatedly, silently to start with, and making up to 20 calls within minutes of
each other. He frequently lurked or prowled around outside her flat,
underneath the windows. Gradually, his conduct became worse and more intrusive.
On
6th February 1996, at about 10 p.m., she saw him outside at the back of her
flat; although he was wearing dark clothing she saw him clearly with the
assistance of the security lighting. On the following evening, 7th February,
she saw him outside her front door on his hands and knees. When she asked him
what he was doing, he said "I am just seeing whether you are going to bed or
not", and told her that he loved her. She telephoned the police and he ran
away. Just after midnight he returned and followed her up the stairs, taunting
her by saying "I bet you think you are fucking clever, calling the police".
On
3rd March someone whom she did not see kicked her front door. On 12th March,
when she was waiting to give evidence in court in another matter concerning the
appellant, he threatened her by drawing his finger across his throat twice, and
later that day she saw him kick her front door. On the following day, 13th
March, she received 20 telephone calls, starting at 6 a.m. and continuing for
some two hours. The first few calls were silent but in later calls the silence
was punctuated by screaming and hideous laughter which Miss Holland recognised
as that of the appellant. At 2 p.m. that day she found a target and two arrows
drawn in indelible ink on her kitchen window. Two days later, 15th March, she
found her gas meter had been removed and left in the next door garden with the
letters "R.I.P." written on it and a flower on the top.
It
was about this time, mid March, that Miss Holland began to suffer from severe
head-aches. On her account, the appellant continued to harass her in various
ways, particularly by telephoning her at home and at her work. On one occasion
in late March a taxi that she had not ordered, arrived at her flat in the
middle of the night to take her to hospital. On 20th August she found a piece
of raw liver had been pushed through her letter-box. Two days later, 22nd
August, she found a torn piece of holiday brochure, showing details of a
holiday she had booked, pushed through her letter-box. On 29th and 30th
August, shortly before she was due to go on holiday, he telephoned her telling
her that she was going to her death and that he could smell burning. The calls
could be traced to Lymington and New Milton, not far from where Miss Holland
worked. She had tape-recorded the calls and was so frightened that she went to
stay the night with her mother. There, on the following morning, 1st
September, she found underneath a dustbin lid on the front doorstep a severed
chicken's head on a bible. She called the police and they arrested the
appellant at his home that afternoon. They found in his bedroom the remaining
part of the torn holiday brochure.
The
prosecution called independent evidence from a Mr Peter Shorey about "lurking"
and "prowling" incidents in February or March 1996 of the kind about which Miss
Holland gave evidence. He was the only truly independent witness to support
any of her allegations. His evidence was in the form of two witness statements.
He was too unwell to attend court. The Judge eventually gave leave to the
prosecution to read his evidence, pursuant to Section 23 of the Criminal
Justice Act 1988. We say "eventually", because he had originally ruled that Mr
Shorey's first statement, made on 10th September 1996, at about the time of the
appellant's arrest and some nine months before the trial, could not be read for
reasons that we shall mention in a moment. As a result of that ruling the
prosecution, on 21st July 1997, in the course of the trial, took a second
statement from him, and on their renewed application the Judge gave leave to
read both statements.
In
the first statement, Mr Shorey said that he lived opposite Miss Holland and was
familiar with the sight of the man who had lived with her there. He said that
in early February or March 1996 - that is, shortly after the relationship
between the two had broken up - he was walking his dog at about 8.20 p.m. when
he saw a man loitering in the gardens behind the block of flats next to the
block in which Miss Holland lived. He did not recognise the man at first and
went over to him and asked him if he was lost. It was then that he recognised
him as Miss Holland's boyfriend, whom he named as Paul Cox. The man told him
that he had lost a dog he was walking for a friend. Mr Shorey thought it a bit
strange, and when he returned home he stood in his porch and watched the man.
He said that he saw him walking around the block of flats in which Miss Holland
lived and stopping outside and under her flat, as if listening. Two nights
later he saw him there again. The man saw him and approached him saying that
he had lost the dog again. Mr Shorey mentioned other evenings about that time
when he saw the same man loitering outside Miss Holland's flat, on one occasion
ducking into the porch when she opened her window and calling out "Is anybody
there?" He concluded by stating:
" ...
I can positively identify the male who I have seen prowling around the [sic]
Sandra's flat and [sic] the boyfriend who was living with her up'til the
beginning of the year. This man is known as Paul Cox and [sic] would
definitely recognise him again."
The
Judge, when application was first made to him to admit that witness statement
under Section 23, refused it because it did not indicate how Mr Shorey was able
to name the prowler as Paul Cox and because he was not satisfied that Mr
Shorey, in his use of that name, was referring to the appellant. On prosecution
counsel's advice, the representative of the Crown Prosecution Service
instructing him telephoned Mr Shorey. Prosecution and Defence Counsel listened
to the conversation. In the course of it the representative asked Mr Shorey
how and when he came to know the man as Paul Cox. He responded by saying that
he was suffering from much pain and taking a lot of medication, that he did not
remember very much and that it was difficult for him to remember when he had
first heard the name. He spoke of Miss Holland visiting him, introducing
herself and asking if he had seen anyone tampering with her gas meter. He said
that the name Paul Cox might have been mentioned when he made his witness
statement, but that he could not say for sure.
As
a result of that conversation Mr Shorey was asked to and did make his second
witness statement. In it he said that when he had seen the man prowling
around he had not known his name. However, he said that he could
"categorically" state that it was the man whom he had used to see around the
estate with Miss Holland and on occasion looking out of her flat window - the
only man he had ever seen her with. He gave a description of him, which
corresponded broadly with that of the appellant, and said that he would
recognise him if he saw him again. He added that he had found out his name
from Miss Holland when she first approached him to ask if he had seen anything
suspicious outside her flat and that the police officer who had taken his first
witness statement had referred to him by name.
Miss
Holland's mother, Mrs Eileen Holland, and sister, Mrs Gaynor Crighton, also
gave evidence for the prosecution. Mrs Holland said that she recognised the
tape-recorded voice of the telephone caller on 29th and 30th August 1996 as
that of the appellant. Mrs Crighton spoke of telephone calls from the
appellant to her on 11th and 12th March 1996 threatening harm to Miss Holland,
including, on 12th, a reference to her gas meter and blowing up her home. As
we have said, Miss Holland gave evidence of finding her gas meter in the next
door neighbour's garden on 15th March.
As
to the effect of all this behaviour on Miss Holland, the prosecution called
unchallenged medical evidence that it had caused her actual bodily harm in the
forms of anxiety, depression, distress, insomnia and loss of weight.
In
interview, the appellant denied responsibility for any of the incidents of
harassment of which Miss Holland had complained, including prowling around her
flat and the many telephone calls. He implied that she had "planted" the torn
holiday brochure in his bedroom. He maintained that he had quickly formed a
new relationship after breaking up with Miss Holland and had wanted nothing to
do with her.
The
appellant gave evidence confirming his denials in interview and maintaining
that Miss Holland had made false allegations against him out of malice. As to
her and Mr Shorey's evidence of his prowling around her flat, he said that he
had never done that and that Mr Shorey must have seen and spoken to another
man. As to the torn piece of holiday brochure put through Miss Holland's
letter box on 22nd August, he again denied any responsibility for it. He said
that he was on holiday with his parents in Cornwall at the time, and called as
an alibi witness a Mr Lee who said that the appellant and his parents had dined
in his restaurant in Cornwall that night.
As
to the two telephone calls from Lymington and New Milton on 29th and 30th
August, he maintained that he could not have made them because he was still on
holiday with his parents in Cornwall. He called a witness purportedly in
support of the alibi, a Mr Gavan, who was only able to say that he had seen the
appellant and his father in Cornwall on 20th August, over a week before the two
telephone calls.
The
first pleaded ground of appeal is that the Judge wrongly permitted the
prosecution to put in evidence before the jury the written statements of Mr.
Shorey. There was no dispute that Mr Shorey's statements satisfied the
requirements of admissibility under Section 23 of the 1988 Act, in particular
that he was medically unfit to attend court. The statutory test for the
Judge's decision under Section 26 of the Act whether to permit the statements
to be read was whether, having regard to the following matters, to do so would
be in "the interests of justice":
"(i)
... the contents of the statement;
(ii)
.. any risk, having regard in particular to whether it is likely to be possible
to controvert the statement if the person making it does not attend to give
oral evidence in the proceedings, that its admission or exclusion will result
in unfairness to the accused ....; and
(iii)
.. any other circumstances that appear to the court to be relevant."
The
Judge, in his ruling, concentrated on (1), the quality of the evidence and
(ii), the scope for the appellant to controvert it. As to the quality, he
described it as good, two statements which, when read together, clearly pointed
to the appellant as the man whom Mr Shorey had seen prowling around Miss
Holland's flat, regardless of his unsureness on the telephone about how he came
to know his name as Paul Cox. As to the appellant's ability to controvert Mr
Shorey's account, the Judge said that he could do so by giving evidence. He
also mentioned the possibility of testing Mr Shorey's evidence by asking Miss
Holland about the circumstances in which she approached him as a potential
witness, and added that such unfairness to the defence as there might be in
admitting the evidence could be overcome by an appropriate direction to the
jury.
Defence
counsel did not seek to put before the jury the content of the telephone
conversation giving rise to the second witness statement. Thus, it was no part
of the defence attack on the witness statements, once in evidence, that the
credibility of Mr Shorey in making the second was damaged by the circumstances
in which he came to make it.
The
Judge, in the course of his summing-up, warned the jury appropriately about the
shortcomings of written evidence untested by cross-examination and suggested
that they should look elsewhere for independent support for Miss Holland's
account. This is how he put it at pages 6E-7C of the transcript of his
summing-up:
"...
unlike every other witness whose evidence is not accepted, the defence has not
had the opportunity to test the witness in cross-examination. Clearly, they
would have wanted to do so in this case to dispute that Mr Paul Cox was the man
Mr Shorey says he confronted outside his building, and that loss of opportunity
is an important factor in deciding what reliance you place on Mr Shorey's
evidence.
Bearing
in mind the disadvantages to the defence, the precise weight or importance you
place on that evidence is really a matter entirely for you. At the very least
you might think it is advisable to look around for other evidence that
independently supports or points to the defendant's involvement as the
perpetrator of the campaign against Miss Holland. That independent evidence
might be, for example, if you so find, the brochure and the cutting of the
brochure, or from Mrs Crighton, the sister, about the telephone call and then
the subsequent incident with the gas. Things like that, independent things,
things that are independent of Mr Shorey's evidence that indicate, as I say,
that this defendant was the person that was ... stalking Miss Holland."
Mr
Pardoe (who did not appear below) maintained on behalf of the appellant that
the admission of the evidence was not in the interests of justice for the
following main reasons.
First,
he submitted that the Judge wrongly regarded the quality of Mr Shorey's
evidence as good because he failed to have regard or sufficient regard to the
circumstances giving rise to Mr Shorey's second statement, in particular to his
expression in the telephone conversation of difficulty in remembering certain
matters. He referred to the provisions of paragraph 1 of Schedule 2 to the
1988 Act, which provide for admission of evidence relevant to the credibility
of the maker of a witness statement read to the jury under Part II of the Act.
However, it is plain from a remark by the Judge in the course of submissions on
the matter, that he took the view that such uncertainty as Mr Shorey had
expressed on the telephone went to the unimportant matter [in the light of the
second statement] of the appellant's name, not the important one of
recognition. As Counsel for the prosecution, Mr. Nigel Lickley, had observed
to the Judge in the course of his submissions, Mr Shorey may well have been
uncertain as to when he got the name but he was never in any doubt as to who
the person was. And, as we have said, defence counsel at the trial did not
apply to put any evidence about the telephone conversation, whether in agreed
form or otherwise, before the jury. In our judgment, the Judge was entitled to
regard the quality of the evidence as good, having regard to the terms of the
witness statements and to what he knew about the telephone conversation with Mr
Shorey preceding the making of the second one.
Mr
Pardoe submitted, secondly, that the Judge wrongly referred to the possibility
of Mr Shorey's evidence being tested by that of Miss Holland, since she could
not help as to the circumstances of his recognition of the appellant. However,
it is plain from the Judge's words that he had in mind, not a testing of the
circumstances of Mr Shorey's recognition of the appellant, but a testing as to
the circumstances of Miss Holland's visit to Mr Shorey and whether she had
mentioned the appellant's name to him.
Mr
Pardoe's third submission was that the Judge wrongly failed to direct the jury
as to the quality of Mr Shorey's witness statements and as to the circumstances
of his claimed observation in them, particularly the fact that Mr Shorey gave
his first description of the "prowler" in his second statement, a long time
after the event. These complaints did not feature in the grounds of appeal or
in the skeleton argument filed on behalf of the appellant, and Mr Pardoe made
them notwithstanding that both trial counsel had agreed in advance the Judge's
direction about Mr Shorey's written evidence. We have set out that direction.
He followed it with nearly three pages of Turnbull warnings about the
recognition evidence of Miss Holland and Mr Shorey, pointing out the special
need for caution before convicting on reliance on either, and drawing attention
to various potential weaknesses in each. It is true that he did not
specifically refer to the fact that Mr Shorey's first description of the
"prowler" was some eighteen months after the event, but that was clearly
apparent from the statements, both of which the Judge read in full to the jury.
In our judgment, there is no more substance in these complaints of the
summing-up than in any of the others made by Mr Pardoe in relation to Mr
Shorey's written evidence.
The
second pleaded ground of appeal relates to the Judge's direction to the jury on
the need for unanimity. The complaint is that he wrongly told them that they
had to be unanimous about each type of allegation as distinct from each single
act before they could rely on it to convict. It is said that such a direction
left open the possibility that some jurors would be sure that some acts within
a type had been proved and that others, unsure about those acts, would be sure
of others within the same type, with the result that the whole jury would
wrongly decide that the type had been proved.
The
Judge's directions to the jury, at pages 5D-6B, which he repeated and
elaborated at pages 53G-55D in response to a question from them, may be
summarised as follows:
-
they should consider each and every type of allegation and only find it proved
if they were unanimous about it;
-
in order to find a type of allegation proved they did not need to be sure that
each and every alleged act of that type had been proved;
-
having considered and reached or failed to find proved one type, they should
move on to the next;
-
it did not follow that because they had found one type proved that they should
find another or other types proved, though it was a factor they could take into
account as to motive in the case of other types; and
-
in deciding overall whether the offence was proved, they did not have to find
each and every type proved, but they had to find "sufficient acts within a type
and sufficient types to have been responsible for the actual bodily harm" to
Miss Holland.
Mr
Pardoe has submitted that that direction, in its failure to instruct the jury
on the need for unanimity in relation to each incident which they found proved,
contravened the principles laid down by this Court in R v. Brown (K) (1984) 79
Cr App R 115. That is, that to establish guilt the prosecution must prove
every ingredient necessary to constitute the offence and that proof of one of a
number of matters each capable of constituting a particular ingredient is
sufficient to prove that ingredient. See also R v. Mitchell [1994] Crim LR 66.
As
the Editors of the current edition of Archbold observe, at paragraphs 4-391-3,
the first principle in R v. Brown, that to establish guilt there must be
unanimity as to each necessary ingredient of the offence charged, has caused
difficulties in a number of cases. The difficulties have arisen, not as to the
correctness of the principle, but as to the need for a specific direction and
its precise form in different cases. Much depends on the nature of the offence
charged, its legal constituents and the factual ingredients alleged to
constitute them. Another variable is whether one act may suffice to establish
a necessary factual ingredient of a legal constituent of the offence, as for
example in R v. Brown, or whether, as here, more may be required to establish
both and also to cause another legal constituent and factual ingredient of the
offence, injuries amounting to actual bodily harm.
Where
the charge is one of a course of conduct over a long period, involving several
types of behaviour and many instances of each, all or some of either of which
may establish a particular legal constituent of the offence, courts must
recognize the natural limitations of the forensic exercise before a jury. We
ask them to apply their common-sense; we should give them a common-sense route
tailored to the circumstances of each case to enable them to do so. To take
one example from this case, it is absurd to suggest in relation to 13th August
1996, when Miss Holland alleged that she received some 20 telephone calls from
the appellant, that the jury should have been directed to consider each
telephone call, one by one, to determine whether they could unanimously find
that the appellant was author of it. Indeed a jury might well conclude
sensibly and fairly in relation to such an allegation that they could not
exclude the possibility that some of the telephone calls were made by a person
or persons other than the appellant (a wrong number for example) but that the
majority of them were made by him, even though no juror could say precisely
which of the 20 or so calls had been made by him and which might not have been.
Such a conclusion would, though, be capable of forming part of the proof of the
assault with which the appellant is charged.
In
our view, the Judge struck the right level of particularity for this case in
his directions to the jury to approach their task, first by reference to each
type of behaviour alleged, then by reference to sufficient acts within that
type and, overall, by reference to the sufficiency of both to constitute the
assault causative of the actual bodily harm. It was not necessary or
appropriate for him to have gone further and to have directed the jury as to
the need for unanimity on each of the possibly hundreds of incidents which
emerged in Miss Holland's evidence before considering whether they found
particular types of behaviour proved. Given the nature of the charge and the
evidence in support of it, his direction was true to the principles of R v.
Brown; it was also manageable for the jury and fair to the appellant. Even, if
we were wrong about that, the prosecution case and evidence were overwhelming;
this verdict is not unsafe.
The
appeal is dismissed.
_______________________________
© 1998 Crown Copyright
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