O'Sullivan,R. v

A trial judge must accurately identify and fairly present the defendant’s actual defence. Where the evidence only incidentally raises self-defence, a direction on it must not be presented as the defendant’s primary case or displace the real issue of accident or lack of intent. A summing-up which reverses those matters, and permits an adverse inference on the false premise that self-defence was the defendant’s case, may deprive the defendant of a fair trial and render the conviction unsafe.

At St Albans Crown Court, the appellant pleaded guilty to attempted robbery and was tried before a jury for wounding with intent. He was convicted and received a mandatory life sentence on the wounding count.

The prosecution alleged that he deliberately stabbed a shop employee during the attempted robbery. The appellant’s case was that any injuries were accidental during a melee as he tried to leave the shop. On appeal, the central issue was whether the judge’s summing-up wrongly treated self-defence, rather than accident and lack of intent, as the appellant’s real defence.

1. Appeal allowed. The conviction for wounding with intent was unsafe and was quashed. The court held that the appellant’s true defence was that he had caused injury accidentally and without intent, not that he had deliberately used the knife in self-defence.
2. The trial judge was entitled, at most, to leave self-defence as a subsidiary possibility arising from limited parts of the evidence. He should not have repeatedly described it as the basis of the appellant’s case or as the real issue. The sequence of events was relevant to the accident case as well as to any possible self-defence case.
3. The summing-up instead made self-defence primary, relegated accident to a fall-back explanation, and gave a section 34 direction which allowed the jury to draw an adverse inference from the appellant’s failure in interview to advance the supposed self-defence case. That mischaracterised the evidence and undermined the actual defence. Taken as a whole, the summing-up deprived the appellant of a fair trial.
4. The court did not decide the additional grounds alleging bias or apparent bias. It nevertheless stated that the judge’s description of part of the appellant’s evidence as arrant rubbish, and the sarcastic remark that he probably did not deserve a fair trial, were inappropriate. By reference to R v Iroegbu, it noted that a judge should not indicate personal disbelief of a witness’s evidence to the jury.
5. Exercising its power under section 3 of the Criminal Appeal Act 1968, the court substituted a conviction for section 20 wounding and imposed a concurrent sentence of three years’ imprisonment.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the section 18 conviction, substituted a section 20 conviction, and imposed a concurrent three-year sentence: [2004] EWCA Crim 605.
• Crown Court at St Albans: On 7 February 2003, convicted the appellant of wounding with intent following a jury trial. He had pleaded guilty to attempted robbery and received four years’ imprisonment concurrent with a mandatory life sentence for the wounding offence.