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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> O, R v [2005] EWCA Crim 3082 (2 November 2005) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/3082.html Cite as: [2005] EWCA Crim 3082

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2 November 2005

Wednesday 2 November 2005

THE LORD CHIEF JUSTICE:

1. On 13 April 2005, in the Crown Court sitting at Snaresbrook, the appellant was convicted of murder. He appeals against conviction by leave of the single judge.
2. The ground of appeal is that the trial judge wrongly admitted in evidence a statement made in the presence of the appellant which was prejudicial to the appellant and to which the appellant did not demur. We shall refer to this as the tacit admission.
3. After giving a brief summary of the facts, we propose to consider all the evidence that was adduced, then the issues as they appeared at the stage when the question of whether the judge should admit the evidence of the tacit admission arose, then whether that evidence should have been admitted and whether the appellant suffered any prejudice as a result of its admission.
4. The facts can shortly be stated as follows. At around 7.30pm on Wednesday 30 June 2004, the appellant was sitting with two friends, Luke Martin and Scott Cooper, on the pavement outside the Golden Lion Public House in Barking Road, Plaistow. Mohammed Omar, the deceased, was then 22 years old. He was accompanied by a young woman aged 17 who was related to him, Sahra Ali Hassain. As they walked along the pavement they drew level with the appellant and his friends. Words were exchanged and a fight broke out, during which the deceased's tee-shirt was ripped, and during which he punched the appellant to the head. He and Sahra Ali Hassain then walked away from the incident.
5. The appellant and his friends crossed the road. They walked along on the other side in the same direction as the deceased. They came upon a shop front that was being renovated and there they each picked up a piece of timber. The appellant ran across the road. He ran up behind the deceased, swung the piece of wood and hit him on the right side of his head. After that one blow he ran back to the other side of the road.
6. The deceased was taken to hospital. He was found to have sustained a serious fracture of the skull. In due course it transpired that his skull was somewhat thinner than the norm. He died from that injury.
7. A number of witnesses gave evidence at the trial about this incident. Sahra Hassain gave evidence. She said that she was a family friend of the deceased. She described how she was walking with him on that evening when they came across three boys sitting on bollards on the pavement. When they reached the boys one of them said, "What are you staring at?" The deceased responded with, "Why are you staring at us?" A fight then broke out, involving the deceased and all three boys. The deceased fell to the ground and was hit. A man in the vicinity shouted to those involved in the fight to stop and they did so. Sahra Hassain walked back the way she had come with the deceased, hoping to avoid the other three boys. But after they had gone some way along the road, the appellant came and hit the deceased from behind once on the rear of his head very hard with a piece of wood. She said that the deceased had not looked round when the blow was struck. The appellant was holding the piece of wood with both his hands when he struck the deceased.
8. Gerard Atowo gave evidence of witnessing the fight while he was on his bicycle in the area. He did not see how it started, but saw the deceased trying to defend himself. He saw the deceased punch the appellant to the head. He saw the fight break up and the deceased walk away. He then saw the three boys run across the road and arm themselves with wood. He was able to see what was happening because he was cycling in the same direction as the activity. He saw the appellant strike the deceased on the head with the wood.
9. Malachy Scullion also gave evidence of observing the three boys. He saw them pick up pieces of wood and run down the road. The appellant reached the deceased and swung a thick plank of wood onto the back of the deceased's head once very hard.
10. Sarah Scullion (Malachy's mother) gave evidence of seeing the appellant run past her son with a lump of wood held in both hands, she thought two or three feet long. He ran up to the deceased and hit him on the back of the head with a very loud bang.
11. Two other witnesses gave evidence of seeing these events. There was no significant difference between these accounts.
12. The evidence of the tacit admission was given by a young man called John Woolston, but that related to events two days after the deceased was killed. He had, however, seen the events that led to the death of the deceased. He described them in the same terms as those we have already given in relation to the other witnesses.
13. We turn to the issues as they appeared when the judge gave his ruling which is the subject of this appeal. The appellant had made formal admissions for the purpose of the trial one month before it began. These included the fact that he had struck the deceased on the head with a piece of wood and that this was the substantial cause of the deceased's death. He made a defence statement in the following terms:

"General Nature of the Defence

The defendant accepts that he was present at Barking Road, Plaistow E13 on the 30th June 2004.

The defendant will accept that he was involved in a fight with the victim in this case and that he himself after an initial fight armed himself with a piece of wood and struck the victim with it.

Matters on which issue is taken

In this matter the defendant did not intend to kill the victim and at the time believed that he was acting in self-defence.

Reasons

In this matter the defendant is a young man who was attacked by the victim, an older person of greater height and weight than himself, when the defendant intervened after the victim had attacked another youth at the scene.

The defendant was assaulted by the victim and was thrown to the ground and suffered concussion.

The defendant when attacking the victim with the piece of wood believed that the victim was about to assault him again."

14. By the time that the issue of the admission of evidence about the tacit admission was raised before the trial judge, only Mr Malachy Scullion had given evidence. Mr Suckling QC, who prosecuted and who appeared for the Crown before us, told us that at that point he understood that a defence of self-defence would be run and thus thought that this was a live issue. Mr Sutton, who appeared for the appellant and who appears today, told us that the statement that self-defence would be relied upon in the defence statement was mistaken and that so far as he was concerned, at all stages, the only issue was what intent, if any, the appellant had when he struck the fatal blow. We shall see the position as the judge understood it in due course.
15. We turn to the contentious part of Mr Woolston's evidence. He said that two days after the deceased was killed, in company with his girlfriend Tiffany Lipper, they encountered the appellant and his two companions. Tiffany said to the appellant, "Oh, why did you hit him for? I bet he ain't done nothing to you". One of the appellant's companions replied, "Of course we don't like Asian people. They stink. Why do they come over to our country?" The appellant said nothing. Tiffany then screamed at the appellant and Mr Woolston dragged her away. The three youths walked off smirking.
16. The prosecution sought to put this evidence before the jury pursuant to a common law rule of admissibility preserved by section 118(1)(5) of the Criminal Justice Act 2003 as falling within "any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings".
17. The relevant common law rule was stated by Lord Atkinson in R v Christie [1914] AC 545 at 554 as follows:

".... the rule of law undoubtedly is that a statement made in the presence of an accused person, even upon an occasion which should be expected reasonably to call for some explanation or denial from him, is not evidence against him of the facts stated save so far as he accepts the statement, so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become his statement. He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when a statement was made amounts to an acceptance of it in whole or in part."

18. More recently this court considered this principle of admissibility in R v Collins and Keep [2004] 2 Cr App R 199. In that case the appellant and a co-accused had been stopped and questioned by the police. The co-accused had told a lie and the appellant had not corrected this. This evidence had been placed before the jury on the basis that, by his silence, the appellant had acquiesced in and adopted the lie. At paragraph 34 Thomas LJ set out the following principles:

"From the authorities to which we have referred, it is clear that when an allegation is made against the accused in his presence:

i) It is for the jury to determine whether a statement made in the presence of the accused calls for some response;

ii) If it does, and if no response is made, the statement can only be evidence against the accused if by his reaction to it he accepts that statement as true; although that is a question for the jury to determine, mere silence cannot of itself amount to an acknowledgement of the truth of an allegation.

iii) A distinction is made in the authorities between cases where the defendant is on equal terms with those making the accusation (in which case silence may be used against him) and those where the defendant is at a disadvantage (in which case silence cannot be used against him)"

In that case Thomas LJ held that the evidence should not have been put before the jury because it would not be right to draw adverse inferences from the accused's silence. One reason for this was that the appellant was not on equal terms with the police making the accusations and, furthermore, enjoyed a right to remain silent.

19. In the present case Mr Sutton argued before the trial judge, and repeated his argument before us, that the third principle enunciated by Thomas LJ was in play and that on the facts of this case the appellant was not on equal terms with Tiffany, who was making the accusation, but was at a disadvantage. The trial judge could not see that Thomas LJ's third proposition had any relevance to the facts of this case. Nor can we. Where the defence challenges the prosecution's intention to put before the jury evidence of the defendant's reaction, or lack of reaction, to a statement made in his presence, three questions arise: (1) could a jury properly directed conclude that the defendant adopted the statement in question? If so, (2) is that matter of sufficient relevance to justify its introduction in evidence? If so, (3) would the admission of the evidence have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it?
20. So far as the first question is concerned, the judge appears implicitly to have accepted that it would be open to the jury to find, from the conduct of the appellant in smirking and walking away after his companion had stated that the appellant had struck the deceased "cos we don't like Asian people" that he was acquiescing in that statement. Given that the appellant had not at that time even admitted that he was the one who struck the fatal blow, we do not consider that a jury would be likely to draw from his silence the inference that he was both admitting that he had struck the blow and that he had done so because he disliked Asians. When confronted with a raging Tiffany, silence was perhaps not a surprising reaction. But this was essentially an issue for the jury. We have concluded that it was open to the jury to decide that the appellant had adopted the statement made by his companion.
21. We turn to the relevance of this evidence. The trial judge dealt with this in a passage in his ruling when he said:

"It does seem clear, from what I understand, that central to the issues that the jury will have to consider in this case, is why did the defendant, as is not in dispute, strike this Asian man over the head with a piece of wood? As I understand it from the defence case statement, it is the defence case that he did so in the honest belief, on the facts as he understood them to be, that he was under attack or the threat of apprehended attack. The Crown seek to meet that, they having the burden of proving that he acted unlawfully, by any evidence that is properly probative of what the true motivation and belief was which had caused this violence to take place. That is why, they submit, the evidence is probative of what was said as to its motivation."

On the position as he understood it, we consider that the judge was correct to conclude that this evidence was relevant on the ground that it might disprove the defence of self-defence.

22. On the position as Mr Sutton understood it, and as it turned out to be, we find it hard to see how the evidence had any relevance. The appellant had a fight with the deceased. He and his companions then armed themselves with pieces of wood, crossed the road, pursued the deceased and he struck him vigorously on the head from behind. It seems to us that the evidence plainly demonstrated that the appellant was at that time hostile towards the deceased and that his act in striking him was aggressive. There was at that point only one obvious issue for the jury: had the appellant intended to cause really serious injury when he struck the blow? It was not the prosecution's case that he intended to kill. On that issue the defence was aided to some degree by the medical evidence which showed that the deceased's skull was thinner than normal, albeit that he had been killed by a severe blow. Thus the obvious issue was: murder or manslaughter?
23. The evidence demonstrated hostility on the part of the appellant towards the deceased. The deceased had punched him in the head, which was an obvious immediate reason for that hostility. We cannot see that the question of whether the appellant's hostility was racially motivated in whole or in part had any bearing on the essential issue. Mr Sutton sought to persuade us to the contrary, but he did not succeed. If, as is likely, the jury concluded that the appellant did not acquiesce in the statement as to racist motive made by his companion, it had no effect at all. Mr Sutton suggested that the evidence may have led the jury to conclude that the appellant had a racial prejudice against Asians. If it did, we think that that was a conclusion they were entitled to reach. They might well have reached it from the simple fact of the initial altercation between three white youths and a young Asian man who was walking with a young Asian woman who was fully veiled.
24. Mr Sutton has suggested that such a conclusion may have prejudiced the jury to such an extent that they found that the appellant had intended to cause the deceased really serious physical harm, whereas they might otherwise have acquitted him of such intention. We can see no basis for this suggestion. The evidence of the manner in which the appellant struck down the deceased provides a ready explanation for the jury's verdict.
25. For these reasons the admission of the evidence in issue was in no way unfair to the appellant. The safety of his conviction for murder is not in doubt. This appeal is dismissed.