R v Maw

 

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JUDICIARY OF TRINIDAD AND TOBAGO

HALL OF JUSTICE KNOX STREET

PORT OF SPAIN, TTO

 

Terms: R v Maw

 

Source: All Subscribed Cases Sources

Project ID: None

 

Official Transcripts (1990-1997)

 

R v Maw

 

COURT OF APPEAL (CRIMINAL DIVISION)

 

HOBHOUSE LJ, GARLAND, CURTIS JJ

 

[1994] Crim LR 841, (Transcript: John Larking)

 

29 APRIL 1994

 

29 April 1994

 

P Cross for the Appellant; A Hawks for the Crown

 

HOBHOUSE LJ

 

(reading the judgment of the court): In the Crown Court at Durham in November 1993 the appellant, Michael Maw, stood trial before His Honour Judge McDonald and a jury on an indictment containing two counts. Each count charged an offence of unlawful wounding, contrary to s 20 of the Offences Against the Persons Act, on 12 February 1993. On count 1, the victim was said to be Stephen Cummings. On count 2, it was said to be Kevin Hardy. At the conclusion of the trial, the jury found him guilty on count 1 and acquitted him on count 2. He appeals against his conviction with the leave of the Single Judge. 

 

The trial was unusual. Prosecution witnesses failed to give evidence in accordance with the statements which they had earlier given to the police. The witness Kevin Hardy, the victim named in the second count, declined to confirm the evidence incriminating of the defendant. The witness Cummings, the person named in count 1, gave evidence, but he contradicted himself. 

 

The offences were said to have occurred in a public house in Sunderland called ‘Jollies’. On an upper floor at that public house there is a disco which is approached by a staircase in two flights, with a landing in the middle. The relevant incident involving both the named persons was said to have occurred on the landing at the time that the disco was closing and people were leaving. The appellant was employed as a doorman at the disco. There was another doorman, called Sean, assisting him. They were not wearing any distinctive uniform; they were merely dressed in ordinary clothes. The appellant was wearing a tracksuit. No question was raised about the quality of the lighting on the staircase; it appears that it was well lit.¬†

 

The Crown case was that, at the time the disco was closing and people had been asked to leave, Cummings, who was leaving and was at the top of the stairs, was pushed by some unidentified person. It might or might not have been the appellant. He fell down the first flight of stairs onto the landing. The Crown case was that he was then followed to that point by Kevin Hardy, and, as he was being picked up by Kevin Hardy, Stephen Cummings was set upon by the appellant. He was kicked and punched; in the course of this assault Cummings received the relevant injury. During the same assault, it is suggested, accidentally because the blow or kick was intended for Cummings, Hardy also received a moinor injury. It was, therefore, necessary for the Crown to prove that it the appellant who was the person who was responsible for the injuries to the two men. 

 

The injury to Cummings was serious. It involved a cut across his face, which was said to have been inflicted as a result of a punch or a kick; it required 28 stitches. Kevin Hardy’s injury was less serious; his evidence was that he scarcely noticed it at the time.¬†

 

Within 24 hours of the incident, Stephen Cummings had made a statement to the police, in which he had said it was the appellant who had kicked him and caused the injury. He also said that Hardy had received his injury in a similar way. 

 

The appellant was arrested several days later. In interview he denied his involvement. He was told about the allegations that had been made, and he said it was true that he was working in the disco on the night in question, but did not assault anybody. He denied he was involved in anything concerning Kevin Hardy. His account was:

 

“There was a fight broke out at the top of the stairs and I was like going round telling everybody to get out and I seen like a crowd at the top of the stairs. So I went over and this Cummings is into this other boy or whatever.”¬†

 

He was asked whether he knew the other boy involved. He said, 

 

“I think it’s his ex-wife’s boyfriend, I’m not sure. I just got in and just separated them at the top of the stairs and one of the lads like went flying down the stairs, at the time I didn’t know who it was and I just walked up and like helped him up to his feet, just took him outside and that was it.”¬†

 

He was asked if he saw any injuries. He said, “No, there were no injuries on him.”¬†

 

That effectively was the explanation he gave. Asked how the injuries might have been caused to Cummings, he said, “It could have been, like I say, it could have been off the stairs or whatever or off what happened there, but things happened that fast, you know like. You are saying to me, ‘Did you notice any injuries on him?’ In situations like that, you don’t actually look at anybody’s face or owt like that really, do you? You just try to stop any trouble or whatever, you know.”¬†

 

During the remainder of his interviews, he denied having anything to do with Kevin Hardy. When asked to explain how Cummings might have sustained his injuries, he referred again to the fact there was fighting at the top of the stairs and he could have gone down the stairs. When asked about who might have been involved with Cummings at the top of the stairs, he referred back to what he had previously said, “His ex-wife’s boyfriend, I’m not sure.”¬†

 

At trial Stephen Cummings was called as the first effective witness for the prosecution. We have a transcript of his evidence. He started off by explaining how he had gone to the disco that evening. When he was asked about how he came to leave, he said:

 

“Q. Did you get onto the stairs?¬†

 

  1. No. 

 

  1. What happened? 

 

  1. I was pushed down. 

 

  1. But had you gone through a door to get onto the stairs? 

 

  1. I went through the door and after that I was punched in the face and flung down the stairs.”¬†

 

He was then asked to amplify. 

 

“Q. Who had you seen before that happened? You came out of the door onto the staircase?¬†

 

  1. Yes. 

 

  1. Who was there? Anybody that you knew? 

 

  1. No, nobody. I was just on my way out. 

 

  1. Did you see who it was who had hit you and pushed you down the stairs? 

 

  1. No. 

 

  1. Well, you have told us there is two flights of stairs. How many flights did you fall down? A. Just the top one. 

 

  1. What happened when you got to the bottom of that flight? 

 

  1. I was picked up. 

 

  1. Who by? 

 

  1. Kevin Hardy. 

 

  1. Did you see anybody at that stage that you recognised? 

 

  1. No. 

 

  1. You described having seen the doormen when you went in? 

 

  1. Yes. 

 

  1. And recognising one of the doormen as the defendant. Did you see any of those doormen at that stage? 

 

  1. No. 

 

  1. Did anything happen to you after you had fallen down or been pushed down the flight of stairs? 

 

  1. No.”¬†

 

That evidence was not in accordance with the statement he had given to the police the day after the material events. Mr Hawks, for the Crown, indicated to the judge that he would like to make an application in the absence of the jury. Mr Cross, who was appearing for the defendant, said, “I do not think I need to trouble with the jury retiring.” The learned judge clearly understood that what was involved was an unopposed application to treat Mr Cummings as a hostile witness. He said that that should be the position and gave an explanation to the jury. Thereafter, Mr Hawks treated Mr Cummings as a hostile witness. The earlier parts of the examination-in-chief then continued with references to the statement that Mr Cummings had made and his confirming certain matters in it as being true. This was done in much the same way as it would have been done if Mr Cummings had been asked to refresh his memory from the statement. Having looked at the statement, he was asked:

 

“Q. … did anything happen after you had fallen down the stairs?¬†

 

  1. Yes. 

 

  1. What happened? 

 

  1. Well, as I come up I saw the doorman standing over us. 

 

  1. Which doorman? 

 

  1. Michael Maw. 

 

  1. What was happening? 

 

  1. He was kicking into me and hitting me on the back of my head.”¬†

 

Further evidence was given to the same effect, including:

 

“Q. Did anything happen to Mr Hardy?¬†

 

  1. Aye, he was kicked in the head.”¬†

 

The evidence-in-chief ended on that basis. 

 

In cross-examination, he was asked further questions. He was asked about the inconsistency between the statement he had made in evidence and the written statement, which was in these terms: “As I walked through the door I felt a push of some sort come from the rear of me. I stumbled and fell down the first flight of stairs.” In evidence he said he had been punched in the face. The point was put to him, and he said, “No, I was punched in the face before I was chucked down the stairs.” He was then asked how that could be and how he could make statements of that kind.¬†

 

Later, he was asked about the matters which formed the basis of the Crown case. He was asked:

 

“Q. When you said originally in your evidence today that you did not know who it was who hit you or pushed you down the stairs, that was right, was it not?¬†

 

  1. Yes. 

 

  1. At the bottom of the first flight of stairs you were picked up by Kevin Hardy? 

 

  1. Yes. 

 

  1. When you said that you did not see anyone at that stage who you recognised, and saw no doormen at that stage, that was right, was it not? 

 

  1. Yes. 

 

  1. And you did not see Mr Maw coming along and kicking you in the face, did you? 

 

  1. Why no, because I was on the ground, wasn’t I?¬†

 

  1. Yes, so you did not see that? 

 

  1. No. 

 

  1. And you do not know who it was who caused your injury? 

 

  1. No. ”¬†

 

That evidence exonerated the appellant and contradicted the later answers the witness had given during the course of his evidence-in-chief. 

 

The matter was reverted to in re-examination, which was conducted in the manner of a cross-examination; no objection was taken to that. He was asked:

 

“Q. Now, you describe there Mr Maw kicking you in the head when you were at the bottom of the first flight of stairs, do you not?¬†

 

  1. Yes. 

 

  1. You told us earlier that that was the truth, that is what happened. Now, is that the truth? A. I’m not really sure.¬†

 

  1. Were you sure when you made your statement? A. Not a hundred per cent. 

 

  1. Not a hundred per cent. Why did you say in your statement that it was Mr Maw who was kicking you in the head? 

 

  1. Because I heard it was somebody called Mickey. 

 

  1. Because you had heard that? 

 

  1. Yes. 

 

  1. Is this true what we have got there, that Mr Maw kicked you in the face? 

 

  1. I can’t be a hundred per cent sure.¬†

 

  1. Well, why did you tell me earlier, when I asked you questions, that this was true, that Mr Maw had kicked you in the face? Why did you tell me then that was true? 

 

  1. Because I thought it was him.”¬†

 

Later in his re-examination, he was asked about a meeting he had had taken place with the appellant. He was asked why he saw the appellant, and the answer was:

 

“To see if it was him that did do it.¬†

 

  1. You had already made a statement saying that it was? 

 

  1. I thought that was him. That’s what I described, when I found out that it was him that did do it.¬†

 

  1. What is it that makes you think now that you are not sure that what you told the police the day after was the truth? 

 

  1. I don’t know.”¬†

 

Thus the upshot was: Mr Cummings had given contradictory evidence in-chief, evidence which exonerated the appellant in cross- examination, and in re-examination he had simply said that he was not sure, and that the reason for what he had said in his statement was “because I had heard that it was somebody called Mickey and because I thought it was him.” It may be thought, therefore, that the state of the evidence from Mr Cummings was not such as would be fit to convict a defendant of having assaulted him.¬†

 

At the close of the prosecution case a submission of no case to answer was made. The judge rejected it on two main grounds: first, that it was for the jury to decide which parts of the evidence of Cummings represented the truth and which parts did not; secondly, the appellant had told lies to the police, and therefore there was a basis for inferring guilt from such lies. 

 

The learned judge ruled that the lies were the statement that had been made by the appellant at the interview, that there had been a fight at the top of the stairs, about which the appellant said, “I think the other one involved was his ex-wife’s boyfriend. I’m not sure. I just got in and just separated them at the top of the stairs.” He said that that was a clear lie. The Crown had led evidence from the ex-wife, from the boyfriend, and from another person who was in the disco that night, to say that there was no ill-feeling nor any incident between Cummings and the ex-wife’s boyfriend that evening, and that the ex-wife’s boyfriend and Cummings had not been involved in any fight at the top of the stairs. There was therefore that potential conflict. The defence had challenged that evidence of those witnesses, suggesting that, contrary to their evidence, there had been some incident involving the boyfriend at the top of the stairs, but that evidence was uncontradicted. The sole basis for an inference of lies was the answers given by the appellant in interview. The judge considered that those were significant, and could form the basis for an inference which, together with the evidence of Cummings, would justify the jury in returning a verdict of guilty.¬†

 

Therefore, he left the case to the jury, not only in respect of the offence on count 1, but also in respect of the offence on count 2, upon which, on any view, there was the most tenuous evidence, Hardy not having given any evidence against the appellant. 

 

This appeal is brought on two bases: first, that the judge ought to have acceded to the submission that the case be not left to the jury; secondly, that in his summing-up he did not appropriately direct the jury upon the matters which they had to consider. After the submission was rejected, the appellant did not give evidence and did not call any witnesses. 

 

Before coming to consider the summing-up, it is useful to review the position which arises in cases such as this, where a prosecution witness gives evidence which is contrary to his statement, or fails to give the evidence expected of him. The first thing that should be done by any prosecutor, and by the trial judge, is to consider the step of inviting the witness to refresh his or her memory from material which it is legitimate to use for that purpose. In this case there was such material. There was a statement which was made within 24 hours of the incident when, on any view, the matters would have been fresh in the witness’s memory.¬†

 

It is an undesirable course, following a failure to get the expected answer from the witness, to proceed immediately to treating that witness as hostile. There may be circumstances where the witness is displaying such an excessive degree of hostility, or animus, that that is the only appropriate course. This was not such a case. As counsel now frankly recognise, it would have been better if the intermediate step of inviting the witness Cummings to refresh his memory from his statement had been taken. Had that been done, the indications are that the witness would probably have given the evidence expected of him. That is how the examination-in-chief continued for the next few pages of the transcript. If the witness does not allow his memory to be refreshed, and does not give an explanation of why he chooses to give different evidence, the judge can then go on to consider whether that shows that he should be treated as hostile. 

 

Having decided to treat a witness as hostile, then the witness can not only be cross-examined, but he can be cross-examined on previous statements that he has made. The effect of so doing, if it shows an inconsistency between the evidence that the witness is giving and the previous statement, is simply to undermine or destroy the credibility of that witness. It does not make the statement part of the evidence of that witness. This has been clearly held in R v Golder [1960] 3 All ER 457, 45 Cr App Rep 5. Therefore, in any situation where a witness is treated as hostile and is shown to have made previous inconsistent statements, the primary effect of that exercise is to discretit the witness. The Crown will then be unable to place that witness before the jury as a witness upon whose evidence they should convict. Obviously, in some cases the situation is not as stark as that, and each case depends on its own particular facts, but the basic result of challenging a witness’s evidence by reference to an out-of-court statement is to undermine or destroy the credit of that witness.¬†

 

If the witness, as in this case, chooses to adopt and confirm some of the contents of his prior statements, then, to that extent, what he says becomes part of his evidence at the trial and, subject to the jury assessing his credibility and his reliability, it is capable of being accepted. The evidence is what the witness says in the witness box at the trial, not what he has said in the out-of-court statement. No significant error was made in this case in relation to that distinction. The judge clearly directed the jury in that respect in relation to the evidence of Hardy, and he did also, near the outset of his summing-up, do so in relation to the evidence of Cummings. However, at a later stage of the summing-up, he blurred the distinction and tended to sum up to the jury on the basis that what was said by Cummings in his statement, from which the judge read extensively, was to be treated as part of the evidence in the case. 

 

If a witness has been treated as hostile, and has thereafter given evidence, it is necessary for any jury to consider whether that witness is a witness should be treated as creditworthy at all. Once a witness has been attacked in the way that is involved in treating him as a hostile witness, questions of the creditworthiness of the witness arise both for the judge and the jury, and the jury should be clearly directed on that point. In his summing-up, the judge did not direct the jury’s attention to that question, nor does it appear he considered it himself. It is of fundamental importance for any tribunal to consider whether a witness who has given conflicting evidence is of any creditworthiness at all. It is not proper to go straight to the stage of considering which parts of the evidence are regarded as worthy of acceptance and which are to be rejected.¬†

 

If the judge considers that the witness is of sufficient creditworthiness to allow the jury to take account of his evidence, then he should give the jury a clear warning about the dangers involved in a witness who contradicts himself. The jury need to be warned that they must consider whether they can give any credence to a witness who gives such inconsistent evidence, and only if they consider that they can, go on to consider what parts of that witness’s evidence they can accept.¬†

 

It should be the task of the prosecution (or other party) who is going to invite the jury to rely upon the evidence of a witness who is being treated as hostile, to explore the inconsistencies in the witness’s evidence and the reluctance of the witness to testify. This point was referred to in the case of Golder and in other cases. If there is no explanation for the inconsistencies, then it is obvious that the evidence of that witness is less satisfactory. If the witness can give an explanation for the inconsistency, or his initial reluctance to testify, then it may be that that sets at rest any anxieties there may be about his evidence and enables him to be treated as fully creditworthy.¬†

 

In the present case the prosecution did not provide an explanation for the inconsistency. They did not investigate it with the witness in any thorough fashion. Insofar as they did elicit any answers on that point, they were given in re-examination and do not help the prosecution case. They suggested that the statement that it was the appellant who had kicked him was something which the witness did not himself know, but had heard second-hand, or was merely based upon some belief, not upon an observation. 

 

We turn to the summing-up. At pages 10 and 13, the judge told the jury that they should approach the evidence of Cummings with great caution and reservation. Also in that passage, he reminded them that the burden of proof was upon the prosecution. In our judgment, that warning did not go far enough in the circumstances of the present case, because there was a consideration to which the judge should have addressed himself and to which the jury’s attention should have been drawn before that, whether the evidence of Cummings was creditworthy at all. The Judge said:

 

“…. it is entirely a matter for you, members of the jury …. you can act on that part of the evidence of Mr Cummings in which he says: ‘It was the defendant who did it, who wounded me.’ But of course, members of the jury, you can only do so if you are satisfied that he had a good reason for ‘hunting with the hounds and running with the hare’, and that all he was doing was not wanting to give offence, or whatever it might be.”¬†

 

In that passage, and another passage later in his summing-up, the learned Judge was inviting the jury to decide which of the parts of the evidence of Mr Cummings they preferred, not whether they should act upon the evidence of Mr Cummings at all. 

 

In the same passages, he also referred to the absence of an explanation for the changes in the evidence of Mr Cummings. He referred to the fact that Mr Cross, counsel for the appellant, had made the point that no explanation had been given. The judge continued:

 

“But he was never asked, was he, ‘Why are you saying this and then you change that to that?'”¬†

 

In the context in which the Judge said that, it was put implicitly as something which counsel for the appellant should have investigated, whereas, of course, it was a matter for the prosecution to investigate if they wanted to put forward the evidence as creditworthy. 

 

In our judgment, this summing-up did not approach the question of the conflicting and unsatisfactory evidence of Mr Cummings in a satisfactory way. In our judgment, the Judge should have come to the conclusion that his evicence was not fit to provide the basis of a conviction. He should have exercised his own discretion to withdraw the case from the jury, and, if he failed to adopt that course, he should have directed the jury that they should disregard the evidence of Mr Cummings. 

 

The point which influenced the Judge, and it appears to have been a point which he propounded himself, was that the statements in interview were sufficient to make up the deficiency in the prosecution case. We have already said what those statements amounted to, and referred to the conflict of evidence between them and the prosecution witnesses. 

 

This evidence should not have been treated as sufficient, or of sufficient probative value, to support the conviction of the appellant on either of these counts. It did not justify an inference of guilt. It was at best an explanation which was being proffered by the appellant in tentative terms in answer to questions from the police rather than a lying account which was being presented by the appellant. 

 

We consider that the judge should not have allowed this case to go to the jury, and furthermore that he should not have summed-up in the terms that he did. In our judgment, the verdict on count 1 was unsafe and should be quashed. 

 

We allow this appeal, and we quash the appellant’s conviction.

 

Appeal allowed

 

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