No: 98/1768/W4

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Tuesday 16th June 1998
 
                    B E F O R E :
 
  THE VICE PRESIDENT OF THE QUEEN'S BENCH DIVISION
              (LORD JUSTICE KENNEDY)

                  MR JUSTICE JOWITT
 
                         and

                  MR JUSTICE ASTILL
 
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                     R E G I N A

                       ‑ v ‑

                     LINUS OSCAR
 
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   Computer Aided Transcript of the Stenograph Notes of
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MR B ST LOUIS appeared on behalf of the Appellant
MR J CAMMEGH appeared on behalf of the Crown
 
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                      JUDGMENT
             (As Approved by the Court)
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                   Crown Copyright

                      JUDGMENT
MR JUSTICE ASTILL: On 19th February 1998 in the Crown Court at Luton before His Honour Judge Rodwell QC the appellant was convicted of unlawful wounding as an alternative to wounding with intent.  He had earlier pleaded guilty to having in his possession an offensive weapon, namely an axe, which arose out of the same circumstances.  He now appeals against his conviction by leave of the single judge.
      On 10th May 1997 the appellant had a dispute in a betting shop with a man he knew called Mr Scarlett. There was some minor physical contact and the appellant left.  45 minutes later he returned, he was now was armed with an axe.  It is clear from the evidence the appellant gave that his sole purpose in returning was to confront Mr Scarlett.  He produced the axe. Mr Scarlett's evidence was that the appellant said: "You think you're a bad man.  I'm going to sort you out." He then advanced towards Mr Scarlett with the axe and so Mr Scarlett picked up a stool, at first backing away and then going towards the appellant in an attempt to disarm him.  Thereupon the appellant struck out with the axe and hit the stool.  He struck out with a second blow and the axe fell from his hand and hit Mr Scarlett on the  head causing an injury.  The striking of the blow to Mr Scarlett was supported by a witness, Mr Miller.
      The appellant's version of events as given in evidence was different.  He agreed that he returned to the betting shop with the axe.  He said he took it from his pocket and his intention was to frighten Mr Scarlett, not to injure him, and he went towards Mr Scarlett holding the axe.  Then Mr Scarlett attacked him with a stool.  He raised his arms to protect himself, Mr Scarlett took hold of the hand in which he held the axe, but it slipped from his grasp and struck Mr Scarlett on the head.  In other words his defence was that it was an accident.  There were therefore two versions of the event before the jury.  One was Mr Scarlett's description of a deliberate attack with the axe and the appellant's account that it was an accident.  In addition of course there was the evidence inherent in what the appellant had said that he had no intention to cause injury.
      It was in these circumstances that it was submitted to the learned judge, s submission repeated by Mr St. Louis in this court, that self‑defence should be left to the jury.  The learned judge refused in a forthright ruling on the basis that self‑defence was not open to a defendant who was the aggressor.  He was that  because he returned to the shop with one intention only, even on his own evidence, and that was to threaten Mr Scarlett with the axe so as to frighten him.  The learned judge indicated that there were two matters open to the defence, either that the wound was caused by an accident or that there was no evidence that he intended to cause serious injury, that is the alternative offence of which he was convicted.
      Mr St. Louis submits that the judge was wrong in that ruling and that is the sole ground of appeal.  He has brought to our attention Director of Public Prosecutions (Jamaica) v Bailey (1995) 1 Cr App R 257 PC.  He suggests there are factual similarities between that case and this because on the appellant's account there was a struggle between Mr Scarlett and himself and several others in the shop, and he relies on the judgment of Lord Slynn, in particular at page 263 of that authority.  In that case a lawfully armed Jamaican policeman fell into confrontation with two others. During the confrontation he shot one of them and claimed he did so in self‑defence.  In those circumstances it was clear that self‑defence should have been left for consideration, the distinction being that he was not armed for an unlawful purpose.  That was not so in the present case.  On his own admission, as we have already  pointed out, the appellant said that he was armed so that he could confront Mr Scarlett, therefore armed for an unlawful purpose.  Here there were two possibilities  ‑ accident or a deliberate blow aimed by the appellant  ‑ and the learned judge left both to the jury.  If a man takes a weapon to threaten another and strikes a deliberate blow when others are attempting to disarm him, it is not open in ordinary circumstances for him to plead that he is being attacked.  In those circumstances violence is being used on him because and only because he has used or threatened to use unlawful violence himself.  That is what the judge was saying and in the view of this court he was entirely correct.  There was no factual basis in this case upon which self‑defence could be left to the jury.  Accordingly this appeal must be dismissed.