Marchese, R. v

A count alleging several threats to kill over a lengthy period was technically duplicitous under Offences against the Persons Act 1861. Duplicity is, however, a defect of form. Where no objection was taken before arraignment, a conviction will not automatically be quashed after verdict. The appellate court must decide whether the form of the count created a real risk of injustice, including jury disagreement about the occasion relied on or prejudice to the defence.

Evidence of unparticularised incidents within an alleged course of harassment must be assessed for relevance and fairness in the context of the whole case. A jury may consider the cumulative evidence and need not disregard every individual incident unless sure that the accused committed it in isolation.

The appellant was convicted at the Crown Court at Southwark of two aggravated harassment offences, threats to kill, and perverting the course of justice. The allegations arose from a prolonged campaign of threatening messages and calls directed at Dr Jan Falkowski and Deborah Pemberton, followed by a false rape allegation against Dr Falkowski.

She received a total sentence of nine years’ imprisonment, a restraining order and compensation orders. She appealed against conviction on the ground that the threats-to-kill count was duplicitous, and renewed applications concerning the admission and direction on two incidents, the sufficiency of the evidence on one harassment count, sentence, compensation and the restraining order.

The central issue was whether technical defects in the indictment or trial process had rendered the convictions unsafe or the sentence excessive.

1. The appeal against conviction was dismissed. Count 2 alleged threats to kill on divers days over nearly a year. It was technically duplicitous because each threat capable of satisfying section 16 was a separate offence. That defect concerned the form of the indictment and did not make the count a nullity.

2. Following R v Thompson, the court held that a conviction on a duplicitous count is not automatically quashed after verdict. The question is whether the form of the count caused a real risk of injustice. Here the defence had not objected before arraignment, had ample notice of the prosecution case, and was not embarrassed in its conduct. The true issue was whether the appellant was responsible for the series of messages. There was no realistic basis on which the jury could have distinguished one threatening message from another.

3. R v Clarke and R v McDaid did not alter that conclusion. A trial without any valid indictment, because the bill had not been signed, was materially different from a technically defective count which could be amended during a trial.

4. The court refused renewed leave on the evidence and direction grounds. The boat incident could properly have been particularised as harassment, although the burglary’s relevance was doubtful. The defence had deliberately raised no objection and had used the weak identification evidence to challenge the prosecution case. The summing-up was adequate. The jury could assess those incidents with the other evidence and did not require an isolated, incident-by-incident direction.

5. There was a case to answer on the harassment of Dr Falkowski. Read as a whole, the messages were threatening and calculated to cause fear of violence. The judge had clearly identified the statutory elements, and identity was the only real issue at trial.

6. The court also refused leave to appeal against sentence, compensation and the restraining order. The judge could treat the boat incident as part of the history of harassment, though not as a separate uncharged category of offending. Even without it, the prolonged harassment and attempted procurement of a rape conviction justified the total sentence.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 389, dismissed the appeal against conviction and refused the renewed applications for leave to appeal against conviction, sentence, compensation and the restraining order.
• Crown Court at Southwark: The appellant was convicted on 2 August 2006 and sentenced on 19 January 2007 to a total of nine years’ imprisonment, with a restraining order and compensation orders.