No: 201701045/B1 
Neutral Citation Number: [2017] EWCA Crim 1498
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Friday, 28 April 2017
 
B e f o r e: 

LORD JUSTICE SIMON

MR JUSTICE STUART‑SMITH
 
RECORDER OF CARDIFF
(HER HONOUR JUDGE REES)
(Sitting as a Judge of the CACD)

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R E G I N A 

v 

PETRICA CALDIU CAPUSNEAC
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr E Haygarth appeared on behalf of the Appellant

Ms K Morley appeared on behalf of the Crown

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J U D G M E N T
LORD JUSTICE SIMON:  This appeal arises out of the appellant's conviction in the Crown Court at Liverpool before HHJ Warnock and a jury, of a single offence of threatening a person with a blade or pointed article, contrary to section 139AA of the Criminal Justice Act 1988, as amended.  He appeals against this conviction with leave of the single judge.
The two complainants were a wife and husband, Elena and Madalin Zamfir.  Elena Zamfir gave evidence at trial that on 15th August 2016 she had been walking past the house occupied by the appellant on the way to the supermarket with her 3‑year‑old child.  The appellant had shouted at her and made grossly vulgar and insulting sexual remarks to her.  On her return from the supermarket he had again shouted abuse.  This time he was in the company of a man she knew as "Marius". She complained to her husband and, soon after he returned home from work at about 5.30 to 6.00, they went to Marius' house.  When they got to the door the appellant was immediately violent and tried to pull her husband into the house.  That gave rise to a charge of assault, of which the appellant was acquitted.
According to Elena Zamfir's account her husband broke free and joined her across the road. The appellant then went inside the house and returned with a ladle and a pot lid.  Eventually he threw the pot lid and ladle on the ground and Marius picked them up. The appellant went back inside and came out with two knives.  He came towards them threatening that he would slash their throats.  The appellant left the two knives by the door and Marius took them into the house.  The appellant then returned with a smaller knife threatening and swearing at them again.  On hearing police sirens he discarded the knife.
In cross‑examination she denied that her husband owed Marius money or that her husband had taken a weapon with him.  We should add that it appears to have been the prosecution case that Mr Zamfir had picked up a discarded mop handle which he used to keep the appellant at bay.
Mrs Zamfir accepted that a window had been broken but said this was when the appellant had pulled her husband into the house. The appellant was drunk and aggressive.  She pushed him to protect her husband.  The appellant had not told them to leave.  
Madalin Zamfir, the husband, gave evidence that his wife had telephoned him while he was at work to say she had been abused.  When he returned home they went to speak to Marius.  The appellant was there.  Mr Zamfir had asked to speak to Marius, and then asked the appellant about what his wife had told him.  The appellant immediately got angry, grabbed him by his jacket and tried to drag him into the house.  His jacket was torn.
Once outside the appellant came out with a lid and ladle which he threw at them.   He then went back inside and advanced carrying two knives threatening him.  He filmed the appellant doing this.  The appellant dropped the knives and then had a different smaller knife with which he continued to threaten.  Mr Zamfir saw a mop handle which he used to fend off the appellant.  He agreed that he used to live with Marius and that there was an issue over a utility bill, but there was no money owed and he attended the house because of the appellant's conduct towards his wife.  He denied that he had been carrying a pole or that he had assaulted the appellant inside the house with a pole.
A police officer, PC Westhead, gave evidence that she attended the address.  She saw the mobile telephone footage of the incident and arrested the appellant, who was drunk.  She found three knives.  She saw some damage to the front door of the property and the appellant reported that he had been hit by a metal pole.  She searched but could not find a metal pole.
In interview, the appellant denied seeing or abusing Elena Zamfir when she passed his house on the way to and from the shops.  He had been at home when the Zamfirs came to the house later.  Madalin Zamfir was armed with a metal bar and deliberately smashed a pane of glass in the front before entering the house and striking him with the bar.  It was then that he picked up the knives to remove him from the house and then to get him away from the house.  He admitted taking the knives outside but denied threatening to kill the Zamfirs.  He denied having any intention to use the knife, thrusting the knives towards Mr Zamfir, running towards him, or even having the knifes to frighten them. 
The appellant gave evidence in his own defence.  He said he was a Romanian.  He had conviction for possession of a knife in a public place.  He gave evidence consistent with his answers in interview.  He denied he had seen or abused Elena Zamfir.  He said that the Zamfirs turned up at his address and that Mr Zamfir was carrying a metal pole.  He retreated inside the house but was followed by Mr Zamfir, who said something about money.  Mr Zamfir struck his back with the pole so he grabbed a knife to scare him off. He kept telling Mr Zamfir to leave his house.  He admitted having the two knives outside the house but, beyond admitting having them for a number of reasons including to scare the Zamfirs, he did not admit threatening anyone with them.  He agreed he had been drinking alcohol but he was not drunk as such.  He maintained that he had been assaulted inside the house and at first he had only grabbed a knife from the table.  He had grabbed a second knife but had no intention of using either.
The mobile footage seen by PC Westhead showed the appellant standing in the street with two knives and at one point walking towards the person recording the incident.
The prosecution case was that the appellant had been drunk and had threatened Elena and Madalin Zamfir with the knives he was carrying.  It relied on the witness evidence of the mobile telephone recording of the appellant, the evidence of the police officers who attended and the appellant’s propensity to carry knives.  
The defence relied on the appellant's evidence that Madalin Zamfir had attended his address armed with a pole and had assaulted him.  His case was that he had got hold of a knife in his kitchen to assist in removing Mr Zamfir from his home.
The issue for the jury was whether they were satisfied so that they were sure of each of the three elements of the section 139AA offence, namely that: 
(i) the knives were in the possession of the appellant in a public place; 
(ii) the appellant unlawfully and intentionally threatened Mr Zamfir with a knife or knives and
(iii) he thereby created an immediate risk of serious harm.
The judge also directed the jury that the appellant would not be acting unlawfully if his actions constituted lawful self‑defence and that it was not for the defence to prove that he was acting in self‑defence, but for the prosecution to prove that he was not.  In this context he directed the jury that someone who honestly believes it was necessary to use force to defend himself may use reasonable force to do so.  That appeared to be the central issue in the case.
At page 4D of the summing‑up there is a passage which gives rise to the present appeal.  The judge said under the heading "Self defence": 

"What is it?  Well, in order to prove that the defendant committed either of these offences the prosecution must prove that the defendant used unlawful force on Mr Zamfir.  The defendant admits he was carrying those knives and by inference was using them to threaten Mr Zamfir with them but he says that he was acting in lawfully in self defence." (Emphasis added)

The judge had initially used a different phrase in the draft directions to deal with what the defendant admitted: 

"The defendant admits that he was carrying those knives and threatened Mr Zamfir with them."

He had shown this to counsel and Mr Haygarth, who was appearing at trial for the defendant as he has appeared for the appellant on this appeal, had objected to it.  The judge had then changed the wording when he came to sum up the case as we have described above.
On this appeal Mr Haygarth contends that the final formulation was also defective. This is the first point taken on the appeal.  He submits that, given the appellant did not accept threatening Mr Zamfir with the knives, the judge should not have directed the jury that he admitted so doing "by inference". The second point is that when directing the jury about self‑defence the judge failed to distinguish between someone carrying knives in self‑defence and using them in self‑defence and therefore wrongly directed the jury that the appellant had to have an honest belief that he needed to use force.  The third point is that the judge failed to tell the jury about the legal significance of the appellant's admission that he possessed the knives in order to scare the complainant, and in particular whether that amounted to the use of force. The fourth point is that the judge failed to direct the jury that the appellant was entitled to use reasonable force to protect his property.  The fifth point is that the judge should have incorporated a fourth question into the route to verdict which covered the creation of an immediate risk of serious harm.  
It was the first point that the single judge considered to be arguable.  Put another way the issue is whether it is legitimate to infer from the possession of knives that they were being used intentionally to threaten.
It seems to us that the answer to this will depend on the circumstances.  Plainly possession of a knife or knives will not, of itself, necessarily give rise to the inference that they are being used to threaten.  On the other hand, if they are being carried aggressively, one in each hand by a man who is drunk and who has a grievance, the inference may properly be drawn.  If the judge had told the jury that carrying knives was of itself a threat, then he was in error because that was a matter for the jury ‑ see point 2 above.
We are doubtful that this is what the jury would have understood by his words but whether he was suggesting that an inference arose from the fact of carrying knives or suggesting that it was an inference they might draw from that fact, there was an abundance of evidence that the appellant was using them to threaten Mr Zamfir.
Both the Zamfirs were clear about this and on the appellant's own version he had armed himself with the intention of frightening Mr Zamfir, had left his own house to do so and was in the road with knives moving towards the couple.  Furthermore, the appellant's credibility (he had, for example, denied making any abusive or derogatory remarks to Elena Zamfir), his state of inebriation and previous conviction were matters which could be properly taken into account when the jury came to consider his denial that he was using the knives to threaten Mr Zamfir.
The single photograph, deployed by Mr Haygarth, during the course of argument is no answer to the weight of the evidence against the appellant.  Accordingly we reject the first point.  
We turn then to the remaining points and start with the fifth point since it is, in some ways, illustrative of the problems relating to the other points.  The judge prepared his directions on the basis of his understanding of the issues between the parties.  This was not a complicated case.  He made them available to counsel.  Mr Haygarth took issue with the judge's formulation, and the judge amended it in the way we have described.  That was as it should have been.  The judge had identified the creation of an immediate risk of serious harm as a third element of the offence.  
If this was a matter in issue between the prosecution and the defence, then it was incumbent on counsel to draw the judge's attention at a time when it could have been put right by an addition to the route to verdict.  In fact Ms Morley says in the respondent's notice that no issue was taken by the defence that the appellant's action did not amount to creation of an immediate risk of serious harm; and we can see why that might be so in the light of the evidence of his state of mind at the time.  In any event, we reject this point.  
Mr Haygarth faces a similar problem in relation to the fourth point. The criminal justice system simply cannot operate effectively if points which could and should be taken at or before the summing‑up are reserved for an appeal.  We also note Ms Morley's submission that the appellant did not say in his evidence that he was protecting his property.  Again we see why this might be so in view of the recording of him out in the street holding the knives.  
For similar reasons we reject the second and third points.  If these issues were live issues, and we note they were not raised in the original grounds, then they were matters that should have been raised at the time. The prospect of an appeal should not be regarded as an opportunity to go through a summing‑up looking for deficiencies which may be of academic interest but were never matters of practical concern.
In our view, the conviction for this offence was safe and the appeal is dismissed.