R v Nico Mifsud

In a joint attack, a defendant may be convicted either as the direct perpetrator or as a secondary participant who, with the necessary intent, deliberately assists or encourages the offence. The prosecution need not prove that the secondary participant possessed a weapon alleged in a separate count. A jury may accept some parts of a witness’s evidence and reject others where surrounding evidence provides a proper basis for doing so. An acquittal on possession of an offensive weapon does not make a conviction for wounding with intent inconsistent if that conviction rests on assistance or encouragement without possession. Where the judge has not limited the jury to a particular factual route, the jury may convict on any route supported by the evidence.

The appellant was tried jointly with two others at the Crown Court at Cambridge following two connected incidents involving a sword and serious violence. He was convicted of wounding with intent contrary to section 18 of the Offences against the Person Act 1861, but acquitted of possessing an offensive weapon, namely a knife.

At the close of the prosecution case, the trial judge rejected a submission of no case to answer. The appellant appealed against the conviction, arguing that the evidence could not support the prosecution’s treatment of parts of the principal witness’s account and that the conviction was inconsistent with the acquittal on the knife count. The central issues were whether there was sufficient evidence for the case to go to the jury and whether the verdicts were legally inconsistent.

Appeal dismissed. Both grounds of appeal were rejected.

1. At the no-case stage, the judge was entitled to leave the matter to the jury. A jury may find that a witness is mistaken about important matters but reliable about other matters. It may accept those reliable features where the surrounding evidence provides an evidential basis for doing so. The jury was entitled to accept the repeated evidence that the attacker returned to the nearside of the car, while rejecting other parts of the account. The movements shown on CCTV and blood matching the victim’s DNA on the appellant’s clothing strengthened the inference that the appellant had left the car and participated in the wounding.
2. The evidence also showed that the defendants had acted together shortly before, had travelled together, and had not distanced themselves from one another’s conduct. The jury could therefore find that the appellant participated in a joint attack, either by personally carrying out the relevant acts or by deliberately assisting, encouraging and lending support to the others. A defendant who inflicted, deliberately encouraged or assisted the sword wound must have intended to cause grievous bodily harm.
3. The judge’s ruling on the submission of no case did not restrict the jury to the particular factual basis considered by the judge. The judge had not directed that the appellant could be convicted only if he had threatened the victim with a knife. The jury could convict on any evidentially supported basis, including a finding that the appellant had initially used the sword or had acted as a secondary participant.
4. The verdicts were not inconsistent. The acquittal on the offensive-weapon count could mean that the jury was not sure that the appellant possessed a knife. It did not prevent the jury from being sure that he intentionally assisted or encouraged the wounding. The counts had to be considered separately, as the judge correctly directed.

The court considered it unnecessary to address further the precise status of the judge’s written notes, since no material challenge was made to the judge’s general directions. The appeal accordingly failed and was dismissed.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 1810, the court dismissed the appeal against conviction.
• Crown Court at Cambridge: Following a joint trial, the appellant was convicted of wounding with intent and acquitted of possessing an offensive weapon.