[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Muhib, R. v [1998] EWCA Crim 34 (13 January 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/34.html Cite as: [1998] EWCA Crim 34

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		13th January 1998

LORD JUSTICE ROSE: On 12th February 1997 at the Central Criminal Court, this applicant was convicted by the jury, after a trial lasting several days, and he was subsequently sentenced by His Honour Judge Grigson, before whom the trial had been conducted, as follows: count 1, which alleged murder, of which the applicant was acquitted, but on which he was convicted of manslaughter, 7 years' detention; count 3, a count of wounding with intent alternative to count 2, which alleged attempted murder, 7 years' detention. In both cases the detention was imposed under section 53(2) of the Children and Young Persons Act and the sentences were ordered to run concurrently. He renews his application for leave to appeal against conviction and sentence following refusal by the Single Judge.

The essence of the matter was this. On the night of 20th/21st July 1996, there was, in Guildford, a confrontation between two groups of young men. The applicant was a member of the larger group of six. He stabbed twin brothers, Christopher and Stephen McCarthy, who were members of the smaller group of four. He was, as we have said, indicted for murder on count 1 and that related to Christopher, and he was convicted of the manslaughter of Christopher.

Counts 2 and 3, attempted murder and the alternative of wounding with intent, related to Stephen. He was convicted on the lesser count in relation to that young man. The submission made in support of the renewed application for leave to appeal in relation to conviction by Mr. Urquhart, who appeared at the trial, is that those verdicts were inconsistent and perverse and, in particular, so far as the verdict in relation to Stephen is concerned, the verdict of wounding with intent cannot stand. The submission is, because the jury had not found proved an intention to cause death or really serious harm to support the allegation of murder of Christopher, the jury could not properly find such an intention in relation to Stephen.

The incident culminating in these two offences was spoken to before the jury by a number of witnesses, the detail of whose evidence, for present purposes, it is unnecessary to rehearse. The fatal injury to Christopher was a deep curved incised wound to his right thigh, up to 9 centimetres deep, which severed the femoral artery, causing massive bleeding and death. Dr Chapman, who had conducted the postmortem examination and who described that wound, added that a moderate degree of force would have been required to cause it, but, in a knife fight, one usually expected to find injuries to the chest and stomach: an injury to the lower body, as in this case caused Christopher's death, was much more rare. Stephen had a 4 centimetre wound to his lower chest, passing between his fifth and sixth ribs and entering the pleural cavity. He also had two wounds to his right thigh. The applicant himself had some comparatively minor injuries to the face: they were consistent with him having been, as he claimed, struck by a bottle. The evidence which the applicant gave before the jury was that, on this night, he had a knife in a sheath in his possession, which he carried for protection. He described being struck on the temple by a bottle and having been hit again with the bottle. This caused him to go to the floor. When he got up he took out his knife, because he thought he was going to be killed. He waved the blade from side to side and pushed it forward. He was not aiming for any part of the body and did not realise it had ever connected and he could not account for the injuries which he had undoubtedly inflicted. He threw the knife away. He said that he had only used the knife to protect himself believing that he had no alternative.

This Court has repeatedly, in recent months, reaffirmed the correctness of the approach, when the question of inconsistent verdicts is raised, adopted by the Court in R v. Durante (1972) 56 Cr.App.R. 708. In

R v. Bell (unreported, Court of Appeal (Criminal Division), 15th May 1997) there appears this, at page 8E of the judgment of this Court:

"As it seems to us there is no logical inconsistency in the verdicts returned by the jury and unless there is a logical inconsistency the question of whether or not the jury's verdict can sensibly be explained does not generally arise.

There have recently been a number of appeals to this Court based on allegedly inconsistent verdicts and it is perhaps worth emphasising that it is axiomatic that generally speaking logical inconsistency is an essential pre-requisite for success in this Court (see Durante [whose reference we have given] R v. Warner (unreported Court of Appeal (Criminal Division) 17th February 1997."

In R v. Clarke and Fletcher (unreported, Court of Appeal transcript 30th July 1997) Hutchison L.J., giving the judgment of this Court, at page 7G of the transcript said this:

"The way in which this Court should approach an appeal against conviction, based on allegedly inconsistent verdicts is well settled. To succeed the appellant must show first the verdicts are logically inconsistent, and secondly, that they are so inconsistent as to demand interference by an appellate court i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained. For those proposition we rely on the authority of R v. Durante."

Hutchison L.J. went on to refer to two other decisions of this Court R v. McCluskey (1994) 98 Cr.App.R. 216 and R v. McKechnie and ors (1992) 94 Cr.App.R. 51.

There was one point in his submission to this Court when Mr. Urquhart conceded that it was possible, as a matter of logic, for the jury to reach the two verdicts which they did in this case. In our judgment, that concession, albeit Mr. Urquhart sought to resile from it subsequently, was rightly made. It seems to this Court that there is no possible logical inconsistency in the jury returning a verdict of manslaughter in relation to one victim of the applicant's knife, and a verdict of wounding with intent in relation to another such victim. That being so, it is in our judgment quite unarguable that the verdict on count 3 in this indictment should be regarded as unsafe, on the ground of inconsistency. It follows that the application for leave to appeal against conviction fails.

Turning to sentence, Mr. Urquhart drew attention to certain passages in the summing-up which deal in a little detail with the evidence of Mr. Calini, who was a member of the applicant's group, Mr. Spall, who was a member of the deceased's group, and of the applicant himself. Mr. Urquhart stresses the fact, as also appears in the summing-up, that the deceased and his brother were both rugby players, each standing in excess of 6 feet, and each weighing in excess of 12 stone.

He submits, in the light of that material, that it was a mitigating feature of the circumstances of this case that, notwithstanding the disparate sizes of the two groups to which we earlier referred, there was such substance, both in the appearance of the deceased and his brother and in that which they did, as to induce a degree of fear in the heart of this applicant, such as mitigates his use of the knife. It is to be observed, however, that, at the crucial time, that is to say immediately before the wounds were inflicted, the applicant was clearly adopting, as the jury found, an aggressive stance so far as the deceased and his brother were concerned.

Mr. Urquhart accepts that the carrying of the knife by the applicant was an aggravating feature, but he submits that its use was the result of a spontaneous decision in the circumstances as they developed. It is perhaps worth pointing out in that respect that there was evidence from one witness which was before the jury, Gary Thom, that the applicant and Carlini, to whom we have referred, and Alexander, who was another member of his group were "talking up a fight."

Mr. Urquhart stresses that, following an initial flight to the south coast from Luton in order to avoid detection, the applicant returned and voluntarily surrendered himself to the police some three days after the fatal incident. Above all, Mr. Urquhart stresses that the applicant was not only of good character, but only just 17 years of age at the time of these offences. In the light of those matters, Mr. Urquhart submits that the sentences of 7 years were excessive.

In support of that submission he invited the Court's attention to a decision of this Court in R v. Turns (1983) 5 Cr.App.R. (S.) 48, and there were a number of other authorities which were annexed by him to the grounds of appeal. It is apparent, however, that the authorities to which Mr. Urquhart referred have now to be viewed in the light of the decision of this Court in Attorney-General's Reference No. 33 of 1996 (Daniel Latham) [1997] 2 Cr.App.R.(S.) 10, to which, in the course of his submissions, the Court drew Mr. Urquhart's attention. In that case this Court, in a judgment given by Kennedy L.J., raised the tariff appropriate for offences of manslaughter resulting from the use of a knife in circumstances of provocation. At page 18 there appears in the judgment this passage:

"Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field, and if justice is to be done sentencers must not be put in straitjackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count in relation to the carrying of the offensive weapon for which a separate and normally consecutive sentence should be imposed, but that seems to us to be a somewhat cumbersome approach.

... We have already referred to the aggravating features in the present case- the carrying as a weapon of a sinister type of knife, the failure to retreat when there was an opportunity to do so, and the extent to which others were injured in addition to the deceased. Similarly we have identified mitigating features- the youth of the offender and his previous good character, the extent to which he was outnumbered and initially threatened, and his pleas of guilty, which were of special significance in a case in which the prosecution might not have found it easy to persuade a jury that the offender was not acting in reasonable self-defence."

It is apparent that certain of those matters of aggravation and mitigation, to which Kennedy L.J. referred, apply and certain do not apply in the present case.

What is, however, clear in the judgment of this Court, is that, in the light of that authority, it is quite impossible to advance the contention that a sentence of 7 years concurrently in relation to these two offences was, even arguably, excessive. That being so, his renewed application in relation to sentence must be and is refused.