Delaney, R. v

A conviction is not unsafe merely because further evidence might have assisted the defence. The appellate court must assess the evidence actually available to the jury and decide whether there is a real possibility that the additional material would have materially affected its deliberations.

Where the jury received substantial evidence relevant to the alleged aggressor’s propensity and was properly directed on self-defence, the exclusion of further photographs of that person did not render a conviction for unlawful wounding unsafe. A sentence for glassing near the eye was not manifestly excessive where the injury was serious and the conduct created a real risk of much graver harm.

The appellant was convicted at Woolwich Crown Court of unlawful wounding after striking Daniel Tabrett in the face with a glass in a public house. He was acquitted of wounding with intent and of a separate allegation of common assault.

His case was that he acted in self-defence after Tabrett attacked him. At trial, the judge admitted substantial material from Tabrett’s Facebook account and his previous conviction, but excluded photographs showing Tabrett in a boxer’s stance. The appellant appealed against conviction on the ground that the exclusion made the verdict unsafe. He also appealed against the two-year sentence.

1. Conviction appeal dismissed. The court held that the jury had received ample material from which to assess whether Tabrett had a tendency to aggression. That material included his previous conviction, Facebook entries and the impression he made while giving evidence. The judge’s directions required the jury to consider that material when deciding whether Tabrett had been the aggressor, while recognising that an aggressive tendency did not necessarily make his evidence untrue.

2. The court accepted that the central questions were whether the appellant deliberately struck Tabrett with the glass and, if so, whether he acted in self-defence. The jury had been properly directed that the prosecution had to prove deliberate conduct and disprove self-defence. Although the excluded photographs showed Tabrett stripped to the waist in a boxing stance, the appellant had not seen them before the incident and Tabrett was not so presented on the occasion in question.

3. Having considered the evidence available after the ruling, the court concluded that there was no real possibility that adding the photographs would have materially altered the jury’s deliberations. There was therefore no reason to doubt the safety of the verdict.

4. Sentence appeal dismissed. The judge had properly considered the mitigating features, including the limited injury actually caused, and the aggravating features. This was a glassing close to the victim’s eye, with a real potential to cause a far more serious injury. The two-year sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence in [2010] EWCA Crim 105.
• Crown Court at Woolwich: on 31 July 2009, convicted the appellant of unlawful wounding and sentenced him to two years’ imprisonment; he was acquitted of wounding with intent and common assault.