Case No: 200101187 W3
Neutral Citation Number:  [2002] EWCA Crim 2616
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KNUTSFORD CROWN COURT
(HIS HONOUR JUDGE KILFOIL)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 27 November 2002 
Before :

LORD JUSTICE POTTER
MR JUSTICE BUTTERFIELD
and 
HIS HONOUR JUDGE PAGET QC
(acting as a judge of the CACD)

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Between :

	R	Appellant	
	- and -		
	KIM NOWELL	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr J Clarke  for the appellant
Mr A Jebb for the respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Potter: 
1.	On 1 February 2001 in the Crown Court at Knutsford before His Honour Judge Kilfoil and a jury the appellant was convicted of a single count of Inflicting Grievous Bodily Harm contrary to section 20 of the Offences Against the Person Act 1961, and on 23 February 2001 she was sentenced to a Community Service Order for 240 hours and ordered to pay £250 compensation to the complainant.  On 31 October 2002 we heard and granted her application for leave to appeal against conviction based on fresh evidence which she sought leave to call.  That application was referred to the Full Court by the single judge who directed that the witnesses upon whose fresh evidence she proposed to rely in the appeal, Cheryl Jones and Stephen Jones, attend before the Full Court and that the prosecution be represented at the Hearing.
2.	In the skeleton argument lodged for the Crown, it was acknowledged that, on the basis of the statements of those witnesses (contained in affidavits) the fresh evidence sought to be called met the statutory criteria for reception of evidence by this Court set out in s.23(2)(a)(d) of the Criminal Appeal Act 1968 with the reservation that while, on the face of it, the statement of Cheryl Jones was ‘capable of belief’, the Crown asserts that she was not in fact a credible witness and/or that her evidence would not in fact have affected the verdict in any event.  We therefore granted leave to appeal at the outset of the hearing and proceeded to hear the evidence of Cheryl Jones.  In the light of the Crown’s concession that Cheryl Jones’ evidence was not available at trial Stephen Jones was not called.
3.	Having heard her evidence, we indicated that we would allow the appeal for reasons to be handed down in writing later.  Those reasons now follow.  
4.	The appellant was convicted together with her co-accused Victoria Owens who was also convicted and sentenced to 12 months imprisonment suspended for 12 months and ordered to pay £250 compensation to the claimant.
5.	The short facts of the case were that, around midnight on 29 January 2000, at the Plantation Nightclub in the Abbey Court Hotel, Chester, there was an incident in the balcony area involving the complainant Sandra O’Neill, the appellant and Owens.  Shortly afterwards the police received two telephone calls requesting their attendance at the club, one from the complainant to the effect that she had been assaulted by two women and a second from the appellant, claiming to have been assaulted by another woman.  After speaking to the police, neither party pursued a complaint that night and the complainant attended the Accident and Emergency Department at the local hospital by taxi.  She was later found to have tenderness to her right cheek and numbness to the cheek and upper lip.  X-ray revealed a fracture of the bone overlying the right cheek sinus and she was experiencing double vision in her right eye.  The prosecution case was that Owens, quickly followed by the appellant, attacked the complainant causing her injury.  The appellant and Owens both maintained that the complainant attacked them and that they acted in defence of themselves and, in the case of the appellant, in defence of Owens.  
6.	There were two eye witnesses, Sabrina Suckley and Kathleen Murray, who said that they did not know the complainant or the accused prior to the incident.  Neither witness referred to the appellant or Owens by name in their evidence, but, in summarising their evidence below, we use names in the interests of clarity, there being no issue as to identification.  
7.	Sabrina Suckley said she was sitting at a table on the balcony area above the dance floor, with her friend Kathleen to her left, when she noticed the complainant standing on her own about 8 feet away with a drink in her hand watching the dance floor.  Suddenly Owens came from behind Ms Suckley, went straight to the complainant and, without provocation, punched her in the face.  Ms Suckley did not see any words pass between the women prior to the punch.  She turned to pick up her table which had fallen over and, when she looked back, both women were on the floor kicking at each other.  At that point she saw the appellant go over and punch the complainant in the face whilst the complainant was on the floor.  The appellant remained on her feet whilst the other two scuffled on the floor.  Some doormen came over and parted them.  As it appeared that they were about to eject the complainant, Ms Suckley went over and told them that it was the other two women (Owens and the appellant) who had started it.  
8.	Cross-examined, Ms Suckley said she was a regular at the club but had not seen the complainant before.  Initially the complainant was standing near to a pillar leaning over the rail and facing away from her.  Owens punched the complainant on the side of the face.  She did not see whether Owens made any gestures as she approached the complainant, because Owens came from behind her.  The lighting was not very good, but she could see what was going on.  It was put to her that the complainant was getting the better of Owens at the time that the applicant came over, but Ms Suckley said that was not so.  She agreed that in her witness statement she had said the complainant and Owens were on the floor “feet to feet, kicking at each other”.  She said that she had described this in evidence as Owens kicking the complainant, because the complainant had her legs out in an attempt to defend herself rather than to kick out at Owens.  It was put to her that the appellant had gone over to try to pull the complainant off Owens and she replied “You do not pull someone off by punching or kicking him or her in the face”.  It was put to her that the complainant had punched the applicant in the midriff, but she was positive that was not so.  She had left her name with reception before leaving the club so that it could be passed on to the complainant.  
9.	Kathleen Murray said she was on the balcony with Ms Suckley and saw the complainant standing on her own by the rail looking out over the dance floor smoking a cigarette.  Owen walked over and hit her in the face.  She thought the punch landed straight in the complainant’s face.  She said that she got out of the way pretty quickly.  However she looked over and saw Owens on top of the complainant, straddling her and punching her.  The complainant was lying on her back with her hands up to defend herself.  The appellant came over and joined in, kicking the complainant who was on the floor with Owens on top of her.  She could not remember whether the appellant did anything else.  When the doormen looked as if they were going to throw the complainant out as well as the appellant and Owen, she intervened and told them that the complainant had not done anything wrong.  In cross-examination she said that she was sure the complainant did not throw the first punch.  She was not aware of any conversation prior to seeing Owens’ punch which caused the complainant to go to the ground.  She did not see Owens kick the complainant when she was on the ground, but could not confirm that there was no kicking.  She said she did not see them on the ground feet to feet as described by Ms Suckley.  
10.	The complainant said she had last visited the club in November 1999 when an incident instigated by Owens and the appellant led to a scuffle in the toilets which was broken up by the doormen.  On 29 January 2000 she arrived at the club at around 11.30 pm.  The appellant and Owens were following her around, looking at her in a threatening manner and threatening to ‘have’ her.  She was standing on the balcony, leaning on the railings with a drink in her hand when Owen came over saying, “Have you got a fucking problem?  You’ve been eyeballing us all night”.  She replied she did not even know who they were and had been trying to keep out of their way.  She said she raised her hand as she spoke and, as she did so, Owens lunged forward and punched her to the left side of her face with her right hand.  This knocked her backwards against the pillar which her head hit.  She then fell forward and someone else approached from behind, grabbing her hair and clothing so that she fell on to her back on the ground.  A second person punched her to the right side of her face.  Owens was on top of her.  She recalled her weight across her stomach, punching her in the head.  The doorman came and separated them and she was taken to reception and then to the manager’s office where she asked the manager to call the police.  
11.	When cross-examined she said she did not know why the account in her statement to the police omitted the fact that the two women had followed her around the club making provoking comments.  She denied she had attacked Owens first or that Owens acted only to defend herself.  She did not know whether both women kicked her or just one of them.  She agreed that she had endorsed the notebook of PC Land, who attended the scene, to indicate that she did not wish to make a complaint.  She had at first wanted to pursue a complaint but he had told her that the other women also wanted to make a complaint and that, if they all made allegations, they would all be arrested and have to spend the night at the police station.  He advised her to go to hospital and to leave things till the next day. 
12.	PC Land said that he had attended the club at about 2.35 am, aware that two complaints had been received.  He spoke to the applicant and Owens outside.  He said Owens wanted to make a complaint; she had scratches on her chest and her dress was torn.  He also spoke to the complainant.  She said she wanted to make complaint that the two women had assaulted her.  He supported the complainant’s explanation as to why she then declined to make a complaint and signed his notebook to that effect.  Owens and the appellant decided not to make a complaint for similar reasons.  Later, at interview, the appellant said she had had a problem with the complainant since November 1999 and that the complainant had caused trouble before.  On 29 January 2000 the complainant had been ‘dogging’ her, but she did not rise to it.  She said Owens went to have a word with the complainant who attacked her.  They both went to the floor and she tried to break it up, but was pushed and punched by the complainant who had hold of her dress.  Eventually she punched the complainant once or twice before the doorman split them up.  She did not know whether the punches connected, but did not think they would have had sufficient impact to cause a fractured cheek.  
13.	Owens gave evidence in her own defence.  She was of good character and said she had been at the club in November 1999 at the time of the earlier incident involving the complainant.  However on a couple of occasions since, she had been aware of the complainant staring and being obnoxious, particularly towards the appellant.  On the evening in question she saw the complainant not long after they arrived at the club.  At some stage the complainant nudged the appellant in the back in an attempt to provoke her.  At around midnight she was sitting on the balcony with the appellant.  The complainant was standing against a pillar looking at them.  Owens said she was angry because the evening had been ruined by the complainant’s hostile behaviour.  She walked over to her and said something like “What’s your fucking problem?”  To which the complainant replied “It’s nothing to do with you ... keep out of it”.  Owens said she put her finger up towards the complainant’s face and said “Don’t you speak to me like that” at which the complainant lunged at her chest and got her by the throat so that they both went to the floor.  She said that what then took place was ‘like a cat fight’.  They were lying side by side facing each other and kicking.  The complainant was definitely overpowering her and she was afraid she would get hurt.  At that point the appellant shouted at the complainant to “Leave it” and she saw the complainant push the appellant away.  The complainant came towards her again and she saw the appellant push her.  At that stage the doorman came over and separated them.  The whole incident lasted about half a minute.  Her dress was ‘ripped to shreds’ from where the complainant had grabbed it and torn it.  She described how she had called the police but had then decided not to pursue her complaint.  She denied she had started the fight or that she had punched the complainant, saying that she had acted only to defend herself and that the appellant had come to her aid.  She had no idea how the complainant’s cheek bone came to be fractured, but it could have been caused “by the way she was swinging herself around”.  She agreed it could not have been caused by herself or the appellant on her version of the events. 
14.	The appellant, who was a foster-carer gave evidence.  Save for an offence in 1996 for which she received a conditional discharge, she was of good character.  She spoke of the incident at the club in November 1999 when she said the complainant had assaulted her in the toilets.  She had been ejected and barred from the club and was angry at being treated so unfairly.  The bar was later lifted.  On further occasions when she attended the club, the complainant was hostile to her.  She said earlier in the evening there had been some terrible eye contact between the complainant and two women who were with her and Owens, and that had made her feel very uncomfortable.  The complainant had prodded her in the back on three occasions during the evening, but she had ignored it.  She and Owens decided to leave and sat on the balcony waiting for their lift home.  On seeing the complainant standing there, Owens went to speak to her to see why she was behaving as she was.  There was a conversation which she could not hear.  The complainant and Owens were facing each other with Owens wagging her finger and the complainant looking cross.  She saw the complainant’s hand go up and make contact with Owen’s shoulder and they both fell to the floor.  They had their hands over each other and there was a lot of pushing and shoving.  They were also kicking out at each other.  
15.	She said she was worried and went to break up the struggle.  She pulled off the complainant but the complainant got to her feet, pushed her, grabbed her locket and punched her in the chest with her left fist, then turning back towards Owens.  She tried again to pull the complainant off Owens but the complainant grabbed her dress and pulled at her abdomen.  She said she was scared as she had undergone recent operations to her stomach, and when she failed to prise the complainant’s fingers from her dress she hit out to get the complainant off her before she was injured.  She had managed to get free when the doorman arrived and made them leave the club.  She had phoned the police on her mobile because she had had enough of being assaulted by the complainant and wanted to press charges.  She said she could not understand why the club was treating her and Owens as the troublemakers rather than the complainant.  She said she was unable to account for how the complainant had sustained a fracture to her cheek bone.
16.	The grounds of appeal are advanced on the basis that there is now fresh evidence available from Cheryl Jones.  It is asserted (1) that the conviction is unsafe because her evidence, which is credible, provides a first-hand account of what took place inside the night club.  Such evidence would have been admissible at the original trial and would have contradicted the prosecution case since it supports the appellant’s assertion that the appellant acted in self-defence and/or in defence of Owens.  (2) There is a reasonable explanation for the failure to adduce the evidence at trial in that Ms Jones was, following the incident, living in Wales and was not aware that the appellant had been charged with an offence arising from events in the night club until she learned after the trial of the appellant’s conviction by means of a newspaper article in February 2001.  The appellant was not aware until contacted by Ms Jones that she had witnessed the incident.  Ground (2) has not been disputed by the prosecution before us and the appeal turns upon whether ground (1) is established.  
17.	Ms Jones gave evidence before us.  We found her a credible witness.  Her evidence was to the following effect.  She has known the appellant for over 7 years, she being her father’s ex-girl-friend.  They were great friends and, indeed, the appellant was like a mother to her until 1999 when the appellant and her father split up.  Thereafter, she was not on speaking terms with the appellant and, had they come into contact, she would not have spoken to her.  
18.	She recalled the incident in the night club.  She was there with a friend and work colleague, Glyn Taft.  She saw the appellant and Ms Owens there that night, but it was a big place, and she did not know if they saw her.  She had gone down from the balcony to the bar to get a drink.  On her way back she saw Owens and another woman (the complainant) arguing.  She did not know who the complainant was; nor could she hear what was said.  She was about 20 feet away.  She saw Owens wagging her finger at the complainant.  They were very close, within arm’s reach, arguing.  She saw the complainant move towards Owens with her hands going forward.  She thought that she grabbed hold of Owens but could not really see.  She said she just saw the complainant lunge towards Owens and both fell to the floor.  They had been standing by a pillar and had moved forward from it.  There were other pillars around.  They did not obscure Ms Jones view but, from where she was looking, other people got in her line of vision from time to time.  She said the next thing she saw was the appellant going across to pull the complainant off Owens, where both were still on the floor.  Owens was at that point lying on her back with the complainant kneeling over her.  The appellant went up and tried to pull the complainant off and succeeded.  However, the complainant had hold of the appellant’s clothes and she was swinging her arm upwards with a clenched fist a number of times.  Ms Jones did not see her connect.  However she saw the appellant trying to break the grip which the complainant had on her dress.  The appellant tried to push her away to break her grip and the complainant finally let go when the doormen arrived.
19.	Ms Jones said that that was all she saw.  She did not see any blows from anyone land on anyone else.  She stayed the full evening at the night club and she heard and thought no more of the incident until, about a year later, she saw the newspaper report indicating that the appellant had been convicted.  She said she had not been aware there had been any criminal trial and she telephoned the appellant despite the rift between them, to say that she could not believe she had been convicted.  She said she did not discuss with the appellant the details of the events of the evening.  The appellant simply told her to get in touch with her solicitor and to give him a statement.  
20.	When cross-examining Ms Jones before us, counsel for the Crown obtained no significant concessions or elaborations from Ms Jones, who gave her evidence freely and in an apparently truthful fashion.  She insisted that she had a clear memory of what she had seen and that nothing she said was based on what she had been told.  She said, so far as she was concerned, it was the complainant who initiated any violence which occurred and that, from the time she saw the appellant intervene she appeared simply to be trying to protect Owens and defend herself.  
21.	The rival submissions in relation to the evidence of Ms Jones can be summarised in this way.  Mr Clarke for the appellant submits that Ms Jones’ account of the incident is supportive of the appellant’s case that she initially intervened only to assist Owens when Owens appeared to be under attack and to have fallen to the ground as a result of the lunge forward by the complainant, and that the appellant’s actions in relation to the two when they were on the floor were an effort to separate the complainant from Owens when the complainant appeared to be on top of Owens.  Her description of seeing the complainant swing her arm up with a clenched fist a number of times was generally consistent with the assertion of the appellant that she had been hit by the complainant and had herself only hit out in a situation where she had reason to fear assault from the complainant, who appeared to her to be the aggressor.  Albeit Ms Jones did not see any blow connect, the overall picture was supportive of the appellant’s case that any blow from her was struck in defence of herself and/or Owens.
22.	Mr Jebb for the Crown has submitted, (but we reject), that the circumstances in which Ms Jones came forward and the detail of her evidence, indicate that she is not reliable and is simply seeking to assist the appellant for family reasons.  His second broad submission is that, Ms Jones having acknowledged that she could not see the entire progress of the incident, her evidence was reconcilable with that of the two independent witnesses, Ms Suckley and Ms Murray whose view was relatively unimpeded and who spoke of seeing blows struck by both defendants.  He submits that it must have been on the basis of their evidence that the jury were satisfied that the case against the appellant had been made out and Ms Jones’ evidence does nothing to cast doubt upon their version of events.  
23.	We do not feel able to take that view.  This was plainly an incident where there had been some previous tension, if not bad blood, between the complainant and the co-accused.  The overall incident was in the nature of a violent scuffle, starting between Owens and the complainant and then involving the appellant, following which both sides had independently telephoned the police to make a complaint on the basis that each had attacked the other.  Neither side at first wished to pursue their complaint when it was appreciated that they would be obliged to go to the police station.  There was evidence not only of injury to the complainant but also of (relatively minor) injury to Owens and the appellant.  The appellant admitted striking two blows, but asserted that it was in circumstances of self-defence after she had intervened.  It was certainly never established that it was a blow by her which caused the fracture to the complainant’s cheek.  We agree that, in those circumstances, the jury were bound to have looked to the evidence of independent witnesses to test the truth of the assertions of the appellant, and therefore to accept the evidence of Ms Suckley and Ms Murray not only as to how the incident started, but how it progressed and we conclude that it is likely that they convicted on that basis. 
24.	Nonetheless, if the evidence of Ms Jones had been available to the jury, it would have been independent evidence contradicting the evidence of Ms Suckley and Ms Murray not simply as to how the incident started but, more importantly from the point of view of the appellant, how it continued during the stages when, according to all concerned, the appellant intervened.  As to that, Ms Jones’ evidence asserted a situation which was largely consistent with the account of the appellant and went to the nature and circumstances of the scuffle on the floor in which, according to Ms Jones, the complainant appeared to be the aggressor and the appellant’s efforts were directed to protecting Owens and herself.  In those circumstances, we conclude that, had Ms Jones evidence been available to the jury, they might well not have convicted the appellant, bearing in mind the crowded and confused circumstances once the protagonists were on the floor and the burden of proof upon the prosecution in respect of the plea of self-defence raised by the appellant.
25.	In those circumstances, we consider that the appeal must be allowed and the appellant’s conviction quashed.
26.	We heard the submissions of counsel as to whether it would be appropriate to order a retrial in this case.  In view of the time which has passed since the incident, its generally confused nature, the effectively good character of the appellant and the non-custodial sentence which the judge felt to be appropriate in any event, we decline to order a retrial.