HOUSE OF LORDS 95

something other than what I take to be its prima facie meaning 1971
July 27, 28;
confirms me in the view that it bears its prima facie meaning. Oct. 21
I would, therefore, allow the appeal. SELBY
v.
Appeal allowed. D.P.P.
Conviction quashed.

Solicitors: Sampson & Co., for the appellants.

BEFORE

LORD JUSTICE STEPHENSON, MR. JUSTICE THOMPSON 1971

AND MR. JUSTICE BRIDGE Oct. 21

KENNETH JOSEPH ROBERTS

Assault Occasioning Actual Bodily Harm---Car Driven by Appellant-

Young Girl as Passenger-Assault and Threats by Appellant-
Jump by Girl from Moving Car-Summing-up-Foreseeability
of Conduct of Victim.
A young girl who was a passenger in the appellant's car
injured herself by jumping out of the car while it was in motion.
She ran, shouting for help. to a house and was seen to be in a
very distressed condition. Her explanation was that she had been
assaulted and threatened by the appellant. The judge directed
the jury that. if they felt sure that they ought to accept the
evidence of the girl on what induced her to jump out of the car.
they should convict of assault occasioning actual bodily harm.
Held, that the proper test being not whether the appellant
actually foresaw the conduct of the victim which resulted in the
actual bodily harm, but whether that conduct could have reason-
ably been foreseen as the consequence of what he was saying
or doing. the summing-up was not open to objection and the
conviction must be affirmed.
BEECH (1912) 7 Cr.App.R. 197 followed.
96 COURT OF APPEAL (CRIMINAL DIVISION)

1971 Appeal against conviction.

Oct. 21
KENNETH
The appellant was convicted on June 23. 1971. at Cheshire
JOSEPH Quarter Sessions of assault occasioning actual bodily harm and
ROBERTS
was fined £50 by the Chairman (His Honour Judge David. Q.c.).
The girl's story was that on the evening of May I she went
to a base camp for troops in Lancashire. being at that time
engaged to be married to an American serviceman who had gone
to Vietnam. She was friendly with many of the people at that
base. and from there she went on to a party where she met the
appellant, for the first time. She left that party at about 3 a.m.,
having agreed to travel with the appellant in his car to what he
said was another party in Warrington. After they had driven
out of Warrington in the direction of Liverpool. she asked the
appellant where the party was, and he said that they were going
to Runcorn. They took a curious route to Runcorn. and even-
tually. she said. they stopped on what seemed like a big cinder-
track. 'J1he time by then was apparently about 4 a.m. Then.
she said. "He just jumped on me. He put his hands up my
clothes and tried to take my tights off. I started to fight him off.
but the door of the car was locked and I could not find the catch.
Suddenly he grabbed me and then he drove off and I started to
cry and asked him to take me home. He told me to take my
clothes off and. if I did not take my clothes off. he would let me
walk home, so I asked him to let me do that. He said. if he did.
he would beat me up before he let me go. He said that he had
done this before and had got away with it and he started to pull
my coat off. He was using foul language." And then she said
that she told him ... I am not like this." and he said something
like. .. You are all like that." Then he drove on. .. Again."
said the girl ... he tried to get my coat off. so I got hold of my
handbag and I jumped out of the car. When I opened the door
he said something and revved the car up and I jumped out. The
next thing I remember he was backing towards me and so I ran
to the nearest house. He backed and shouted and then he drove
off." and then she remembered being in the lady's bouse. She
said she was taken to hospital. where she was treated for some
 COURT OF APPEAL (CRIMINAL DIVISION) 97

concussion and for some grazing. and was detained in hospital 1971
Ocr. 21
for three days. When she was cross-examined. she said ... I was
KENNETH
fighting for my life to get him off. He had hold of me while he JOSEPH
ROBERTS
was driving. I probably struck him when he was trying to drag
my coat off, although I did not strike him in the face. He was
travelling at about forty-five miles an hour when I jumped out
of the car." At another point in her evidence. she said that
actually before she had jumped out of the car he started to take
her coat off-" That was the last straw. I opened the door and
jumped." A woman was called from ,the house which she
knocked up, to describe her distressed condition. The jury was
faced with the fact. and it was not disputed when it came to the
evidence of the appellant. that the complainant. by no means an
inexperienced girl of twenty-one years of age. had for some
reason or other jumped out of a moving car, and went running.
shouting for help. to a house. in a very distressed condition.
The appellant. when seen by the police. and apparently seen
in connection with a possible charge far more serious than that
for which he appeared at sessions-a charge of rape. or attempted
rape-told them: .. It is not like you say. all of it. She was game
and led me on. Then she changed her mind and stopped. I was
angry, but so would you be. I drove off. When she jumped out I
was not going very fast." When he came to give his evidence. his
evidence was as consistent with what he said to the police as
was the evidence of the complaining girl with what she said to the
police. He described how the girl had made advances to him-
and how she had moved his hand away, and so on, and how they
had a bit of an argument about her first of all making advances
to him and then changing ber mind, and he said: "I called her
a cow. She hit me and I got hold of her arms and she was shout-
ing and bawling. I drove along about two miles and suddenly
she opened the door and flew out. I was going to take her home.
I stopped the car about fifteen yards further on. I was going
very slowly because of the argument "-that means, I think,
when she flew out of the car-" If it was more than twenty. it
was very little more. I reversed back and I dropped the window
and said. ' don't be daft.' "
98 COURT OF APPEAL (CRJ.MINAL DIVISION)

1971 There was a certain amount of evidence ·that the oomplainant

OCI.21
had been drinking. and she freely admitted that she had in the car
KENNETIf
JOSEPH with her a tumbler. which she said contained wine. and he said
ROBERTS
contained gin; and. according to the appellant. she had been
behaving in a very familiar manner with other officers and per-
sons at the party to which they had been before they got into the
car. She denied that she had been drinking. and indeed a woman
doctor who examined her said that she was not drunk---and,
when he was asked about it. the appellant himself said that she
was not drunk, although she had a certain amount to drink. but
she was just" merry."

A. Carus, for the appellant. The summing-up of the judge

on what the prosecution were required to prove was inadequate.
He should have told the jury that, before they could convict, they
must be satisfied that it was the conduct of ,the appellant which
caused the girl's injuries and that they must negative the possibi-
lity of her having fallen out by accident, or because she was the
worse for drink, or because she chose to do something which was,
in the circumstances, completely foolish. Further, he should
have told the jury that the appellant would be liable for her
injuries only if he foresaw that as a result of his touching her she
was likely to jump out of the car. [He referred to MARTIN (1881)
8 Q.B.D. 54; CHAPIN (1910) 74 J.P. 71; HALLIDAY (1889) 61 L.J.
701; BEECH (1912) 7 Cr.App.R. 197; LEWIS [1970] Crim.L.R.
647.]
D. A. Phillips, for the Crown. Of the cases cited in argu-
ment, BEECH (supra) is most probably the one most precisely in
point. There it was held that the test was, was the action of the
woman in jumping from the window the natural consequence of
the prisoner's conduct? To introduce, as the argument for the
appellant suggests. the further test whether the appellant himself
actually foresaw that the girl would jump out of the car as a
result of his conduct, would be in conflict with the decided
authorities and would be wrong. The judge's summing-up
followed the line established by the authorities and cannot pro-
perly be criticised.
 COURT OF APPEAL (CRIMINAL DIVISION) 99

STEPHENSON L.J.: This appellant. Kenneth Joseph Roberts. 1971

Oct. 21
was convicted on June 23, 1971. at Cheshire Quarter Sessions by
KENNETH
a jury of an assault occasioning actual bodily harm. and he was JOSEPH
fined £50 by the Chairman. He was tried on an indictment ROBERTS
alleging. first of all. that he indecently assaulted a young woman Stephenson
L.J.
of twenty-one; he was acquitted on that charge. but convicted of
assault occasioning actual bodily harm to her. He appeals to
this Court by leave of the single judge. who pointed out that what
was involved here was really a point of law. on which no leave
was necessary; and the point of law relates to a direction given
by the learned judge to the jury who convicted him of this assault.
The jury had to decide what evidence to accept from the girl
herself, and from the appellant. They accepted some police
evidence. and the evidence of a witness or witnesses who had
seen the girl immediately after the alleged assault. There was
no other evidence before them.
[The learned Lord Justice stated the facts set out above and
continued: ]
In those circumstances. the jury had to make up their minds,
first of all. whether the appellant had indecently assaulted this
girl; and after a direction to the jury of which no complaint is
made. or could be made. the jury acquitted him. as has been said.
on that charge.
Next. they had to consider: was the appellant guilty of an
assault occasioning her actual bodily harm? Of course. for
that to be established, it had to be established that he was respon-
sible in law and in fact for her injuries caused by leaving in a
hurry the moving car. and it is the Chairman's direction with
regard to the law on the second count which leads 10 this appeal.
So far as the assault occasioning actual bodily harm was con-
cerned. said the Chairman. " the maHer arises in this way. The
prosecution say. that is to say. Miss Bell says, that driving along
in the car. after the scene on the car park. the defendant, she
says. started trying to take her coat off. That act. in the context
of the conversation that had been going on. if i,t was against her
will. was an assault. The prosecution say that was. for her. ' the
100 COURT OF APPEAL (CRIMINAL DIVISION)

.1971 last straw'." The prosecution were using the girl's words. The
Oct. 21
Chairman continued: "That act. that assault, say the prosecution.
KENNETH
JOSEPH caused her to jump from the car. If. therefore, you find that it
ROBERTS
was an assault. that is to say. find that the defendant did try
Stephenson to take her coat off and that she was not consenting and because
L.J.
of that she jumped out of the car and injured herself. then that
would be an assault occasioning actual bodily harm. but you
have to be satisfied that there was an assault and that it was
that assault that caused the harm." Then he gave an illustration,
possibly misleading to the jury and not very helpful. about the
way in which the harm could be caused. Then later on he
came back to the second charge: "That. in point of time and
space, takes us some five or ten minutes on and about two miles
down the road. At that stage Miss Bell says, 'He was telling
me what he had done to other women, the effect of his conver-
sation was that he was going to have his way with me. and
then he started to take off my coat. That was the last straw.
1 opened the car door and jumped' "-the evidence of the
girl to which 1 have already referred. He then used these words:
" If that be true. then without doubt. that is an assault and it
occasioned actual bodily h:um. Your verdict would be Guilty
upon that cbare. His version is, 'We were arguing. Of course,
1 was frustrated at being stopped when 1 was stopped, but I had
nothing really to do with her jumping out of the car. It was
merely a result of a verbal battle between us. She suddenly
opened the door and before I could do anything she had gone.'
If that be right. there was no assault. Certainly you would
acquit on that charge. But, once more. remember it is for the
prosecution who have brought the charge to prove it. If you
are sure that their version be right, convict. but not otherwise."
He then went in detail into the accounts of the girl and of the
man.
It is quite clear that nothing was said in the court of trial
about common assault. All that was said was about indecent
assault. and assault occasic:>ning actual bodily hann. As regards
the appellant's version, and the alleged indecent assault, what was
 COURT OF APPEAL (CRIMINAL DIVISION) 101

said was accepted by the jury, or must, at any rate, have given 1971
Ocr. 21
them enough doubt to feel that they could not accept certain of
KENNE'IH
the girl's evidence on that. But it follows clearly, in the view of JOSEPH
ROBERTS
this Court, from .their verdict, that they did accept in substance
the evidence of the girl. preferring it to the evidence of the Stephenson
LJ.
appellant. They may have been impressed-it is difficult to
believe they were not impressed-by the absence of any real
explanation by the appellant of how this particular young woman
came to leave the car in the circumstances which injured her. and
in the condition which was attested by at least ODe other witness;
and they did not accept his evidence. they accepted her evidence.
It is very difficult-indeed impossible-for this Court to say
that they were not entitled to do so. The only question is: was
there a misdirection by the Chairman which led them to that con-
clusion, or compelled that conclusion on their part?-and the
way in which that is put in the grounds of appeal which Mr.
Carus has pursued before us is that the Chairman was wrong in
law when he told the jury" if you are satisfied that he tried to
pull off her coa't and as a result she jumped out of the moving
car. then your verdict is Guilty." He failed to tell the jury that
they must be satisfied that the cause of her injuries was the action
of the appellant, and not the fact that she was under 'the influence
of alcohol. or any other reason. Then he goes on to submit that
the learned Chairman was wrong in failing to 'teIl the jury that
they must be satisfied that the appellant foresaw that she might
jump out as a result of his touching her. before they convicted.
And there is a complaint. not really pursued in this Court. that
the judge failed to direct the jury that they might find the appel-
lant guilty of common assault.
We have been helpfully referred to a number of reponed
cases, some weIl over a century old, of women jumping out of
windows, or jumping or throwing themselves into a river. as
a consequence of threats of violence or actual violence. The
most recent case is the case of LEWIS [1970] Crim.L.R. 647. An
earlier case is ,that of BEECH (1912) 7 Cr.App.R. 197. which was
a case of a woman jumping out of a window and injuring her-
102 COURT OF APPEAL (CRIMINAL DIVISION)

1971 self. and of a man who had friendly relations with her. whom
Oct. 21
she knew and might have had reason to be afraid of, being pro-
KE!NNETIf
JOSEPH secuted for inflicting grievous bodily harm upon her. contrary to
ROBE!RTS
section 20 of the Offences against the Person Act. In that case
Stephenson the Court of Criminal Appeal (at p. 200) approved ·the direction
L.J.
given by the trial judge in these terms: .. Will you say whether
the conduct of the prisoner amounted to a threat of causing
injury to this young woman. was the act of jumping 'the natural
consequence of the conduct of the prisoner. and was the grievous
bodily harm the result of the conduct of the prisoner?" That,
said the Court, was a proper direction as far as the law went, and
they were satisfied that there was evidence before the jury of the
prisoner causing actual bodily harm to the woman. "No-one
could say," said Darling J. when giving the judgment of the
Court. " that if she jumped from the window it was not a natural
consequence of the prisoner's conduct. It was a very likely
thing for a woman to do as the result of the threats of a man
who was conducting himself as ·this man indisputably was."
This Court thinks that that correctly states the law. and that
Mr. Carus was wrong in submitting to this Court ,that the jury
must be sure that a defendant. who is charged either with
inflicting grievous bodily harm or assault occasioning actual
bodily harm, must foresee the actions of the victim which result
in the grievous bodily harm, or ·the actual bodily harm. That,
in the view of this Court, is not the test. The test is: Was it the
natural result of what the aIleged assailant said and did, in the
sense that it was something that could reasonably have been
foreseen as the consequence of what he was saying or doing?
As it was put in one of the old cases, it had got to be shown to
be his act, and if of course the victim does something so " daft."
in the words of the appeIlant in this case, or so unexpected. not
not ·that this particular assailant did not actually foresee it but that
no reasonable man could be expected to foresee it. then it is only
in a very remote and unreal sense a consequence of his assault, it
is really occasioned by a voluntary act on the part of the victim
which could not reasonably be foreseen and which breaks the
chain of causation between the assault and the harm or injury.
 COURT OF APPEAL (CRIMINAL DIVISION) 103

In those circumstances, bearing in mind that that is the law, 1971

Oel.21
can any fault be found with ,the summing-up of the learned
KENNETH
Chairman? Undoubtedly, {he learned Chairman took a strong JOSEPH
ROBERTS
line when, in his summing-up, he told the jury that, if the girl's
account of what induced her to jump out of the car was true, Stephenson
L.J.
then their verdict would be guilty. But the jury had to consider:
is the girl's story, broadly speaking, about these two assaults-
particularly the assault occasioning actual bodily harm with
which this Court is concerned-right, or may the appellant's
story be true, in which he fails entirely to account for the girl's
jumping out of the car, except possibly by the alcohol she had
taken, and her anger at his conduct-suggested not, apparently,
by the appellant himself, but by his counsel? No fault can be
found with the learned Chairman for in effect withdrawing this
from the jury in 'the sense thalt he told them, " if you accept the
evidence of the girl in preference to that of the man, that means
that there was an assault QCcasioning actual bodily harm, that
means that she did jump OUit as a direct result of what he was
threatening her with, and what be was doing to her, holding her
coat, telling her he had beaten up girls who had refused his
advances, and that means that through his acts be was in law and
in fact responsible for the injuries which were caused to her by
her decision, if it can be called that, to get away from his violence,
his threats, by jumping out of the car."
The Court has come to the conclusion, after the assistance
of the arguments of counsel on both sides, that the judge was
right to tell the jury that it was their duty to convict if they
accepted the evidence of the girl, and there was no misdirection
involved in his telling them just that. For those reasons, the
Court finds no misdirection in the summing-up, and norhing in
the grounds of complaint made on behalf of the appellant, and
this appeal against conviction must be dismissed.

Appeal dismissed.

Solicitors: F. S. Moore and Price, Wallasey, for the Crown.