Neutral Citation Number: [2009] EWCA Crim 2018
Case No: 200901004/B4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 25 August 2009

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE TEARE 
 
HIS HONOUR JUDGE ROOK QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

KAUE PASSOS‑CARR 

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Mr S Earnshaw appeared on behalf of the Applicant 
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J U D G M E N T 

1.	JUDGE ROOK:  On 9 February 2009 in the Crown Court at Kingston upon Thames this applicant was convicted of inflicting grievous bodily harm (count 2).  He was acquitted of an alternative count of causing grievous bodily harm with intent (count 1).  He was subsequently sentenced to a four month detention and training order.  His co‑accused, Joshua Dubey, was convicted of causing grievous bodily harm (count 1).  
2.	This applicant now renews his application for leave to appeal against conviction following a refusal by the single judge.
3.	We can deal with the facts briefly.  On 3 October 2008 Reece Taylor was assaulted by a group of youths outside a house in Twickenham where a 17th birthday party was being held.  The prosecution alleged that the applicant and a co‑accused were amongst the assailants.  Neither of them had been invited to the party.  When they gained access they were asked to leave.  They left but remained close by with other youths who had also not been allowed entry into the party.
4.	The prosecution case was that the applicant and the co‑accused were responsible for the injuries sustained by Reece Taylor in an unprovoked attack which involved them punching and kicking him whilst he was on the ground.  In particular, the applicant approached the complainant in an aggressive manner, exchanged words with him and then punched him.  Following this his co‑accused became involved and started to punch Reece Taylor before both the applicant and the co‑accused kicked him whilst he was on the ground.  
5.	The complainant, Reece Taylor, was examined the same day at West Middlesex Hospital.  He had a swollen left eye and a partial drop of the left eye lid.  A CT scan showed that his right jaw bone was fractured and part of the bone around the left eye was broken.  He was seen four days later by a facial surgeon who reported the swelling around the left eye and tenderness around the jaw joints.  Due to the swelling he was not able to open his mouth fully and his right incisor tooth was chipped.  
6.	It was the applicant's case that Reece Taylor was the aggressor.  Taylor had shouted at him and walked up to him.  The applicant had acted in self‑defence in pushing his left shoulder with his out‑stretched arm.  Taylor stepped back and punched the applicant on his left temple causing the applicant to fall backwards to the ground.  It was his co‑accused who had subsequently punched Reece Taylor causing him to fall to the ground.  His co‑accused then caused Reece Taylor's injuries by punching him 15 times whilst he was on the ground.
7.	It was the co‑accused's case that he only punched Reece Taylor in self‑defence.  The co‑accused who gave evidence did not allege that the applicant was responsible for any violence to Reece Taylor.
8.	The issue for the jury in respect of the applicant was whether the applicant had taken part in an unprovoked attack upon the complainant.
9.	During the trial the prosecution made an unsuccessful application to the trial judge to adduce evidence of the co‑accused's bad character as evidence of propensity under section 101(1)(d) of the Criminal Justice Act 2003.  In particular the co‑accused Joshua Dubey had three convictions for assaulting police officers, apparently all on the same day, and a conviction for common assault.  The trial judge ruled that the prosecution could not rely on these convictions as evidence of propensity.
10.	The applicant's counsel, Mr Earnshaw, did not support the prosecution application at that stage, although Mr Earnshaw has told us today, and we accept, he did put down a marker that he would be making an application under gateway (e) in due course once the co‑accused had given his evidence.
11.	Subsequently Mr Earnshaw did make that application under section 101(e) of the Criminal Justice Act 2003 on the basis that it was the applicant's case that all the injuries inflicted on the complainant were inflicted by the co‑accused, Mr Dubey, who had punched and kicked the complainant.  In contrast, it was submitted, the applicant had no previous convictions.
12.	The 2003 Act provides at section 101(1):
"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if ‑‑ 
... 
 (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co‑defendant." 
13.	The judge acknowledged that there was a form of cut‑throat defence in this case in that there was an important issue as between the defendants, but ruled that the evidence of Dubey's bad character did not have substantial probative value in relation to an important matter in issue between the applicant and his co‑accused.  Accordingly he found that the statutory test was not satisfied. 
14.	It is now submitted by Mr Earnshaw on behalf of the applicant that there was an important matter in issue between the applicant and his co‑accused as to who actually attacked the complainant and who caused the injuries.  It was the applicant's case that the attack was confined to the co‑accused and he was not a party to any joint enterprise. 
15.	It is further submitted by Mr Earnshaw that the evidence of Dubey's previous convictions showed a propensity to violence on his part which made it more likely that the version put forward by the applicant and his witness was more probable than Dubey's account. 
16.	On the basis of this principle which was adopted in Randall [2004] 1 Cr App R 26, a case decided under the pre‑Criminal Justice Act 2003 regime, and was followed in Rafi [2005] Crim LR 963 Mr Earnshaw contends that this evidence did have substantial probative value. 
17.	In our view, as the judge found, there can be no doubt that there was an important matter in issue between the applicant and his co‑accused in that it was the applicant's case that there was no joint venture and the co‑accused was solely responsible for the attack and the complainant's injuries. 
18.	We are happy to assume that, in an appropriate case, evidence of propensity to be violent can be evidence of substantial probative value as to issues between two defendants in a cut‑throat case where two defendants blame each other.  However, in this case the co‑accused accepted that he punched the complainant's head, albeit in self‑defence.  Furthermore, the co‑accused did not seek to implicate the applicant.  
19.	In our view, in the light of this, the trial judge's conclusion that the evidence of the co‑accused's bad character did not have substantial probative value as to whether the co‑accused was solely responsible for the complainant's injuries is an entirely reasonable decision in the circumstances.  He recognised that this was not one of the classic cut‑throat cases, where co‑defendants undermine each others' defences, and he carefully evaluated the degree of probative value the evidence would have if it were admitted.  If reinforcement for this view is needed the jury rejected the co‑accused's defence of self‑defence and convicted him of section 18 and so must have proceeded on the basis that the co‑accused unlawfully punched the complainant. 
20.	Accordingly, in the circumstances, we refuse this renewed application for leave to appeal against conviction.