QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF WILKINSON||(CLAIMANT)|
|DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
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MR WE RICKARBY (instructed by CPS, Birmingham B3 2AQ) appeared on behalf of the DEFENDANT
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"The defence then continued with the defence case and after the next witness asked for permission to address the court stating that they had an opportunity to look at the law and quoting Wood Green Court exparte Taylor CLR 876 stating that on consideration, even though it was not the end of the case, they felt that as Carol Wilkinson, the defendant, had given evidence and she had not been cross-examined, her evidence had to be accepted as it stood. The fact that the prosecution had not asked any questions implied that her evidence was to be accepted. The prosecutor responded by stating that the prosecution witnesses had given clear contradictory evidence against the appellant's. The prosecution witnesses had been cross-examined and therefore she knew their case but chose simply to ratify her own statements under caution, that being the totality of her evidence in chief. Having considered the cases given to me and checked on O'Connell V Adams 1973 CLR (which was referred to in Blackstones 2002 F 73), I came to the conclusion that Wood Green Court ex parte Taylor 1995 did apply in the Magistrates' Court. At that time no-one was able to get a copy of this particular case. At the end of the case the court heard final submissions from defence counsel."
Pausing there, it does seem from that that there were witnesses other than the defendant called on behalf of the defendant. Continuing with the case stated.
"By this time he [that is defence counsel] had got a copy of O'Connell v Adams, from the 1973 Criminal Law Reports page 113. From the earlier argument that he had made he was able to add that whilst O'Connell v Adams states that in summary trial for witnesses not challenged that does not mean the justices must accept the evidence. On further reading it was noted that the reason for this was that in summary proceedings the defendants are not always 'represented by a person who is a highly qualified professional advocate', and moreover, the presumption is often that matters are heard in Magistrates' Courts by an unqualified Tribunal. But in this case there was a district judge and clearly the appellant was represented by a barrister. The prosecution by a very experienced agent.
"I returned at the end of the case to consider the evidence that I felt that the only person not cross-examined was the appellant. She had heard the entire prosecution case and her barrister had cross-examined all the witnesses produced on behalf of the Crown. When it came to the defence case the appellant was simply called and asked to confirm on oath that the statement under caution she had made to the police was true. No further evidence was produced in chief. Bearing in mind these factors, I did not feel the appellant had been in any way disadvantaged by not being cross-examined. The prosecutor appeared in effect to have left the decision to the court. It was satisfied on the evidence which had been called, to which there was a clear conflict with the appellant's statement under caution, and the case was proved beyond any doubt and in the circumstances convicted the appellant.
He stated the following questions for the opinion of the High Court:
1. Was I correct, in law, to rule that I was not bound to accept the evidence of Mrs Wilkinson, given that the prosecutor did not cross-examine her and bearing in mind that I am a qualified judge hearing a case prosecuted by a professional advocate?
2. Was I correct, in law, to convict Mrs Wilkinson in the above circumstances when her unchallenged evidence would have amounted to a defence, albeit the only evidence called was Mrs Wilkinson confirming on oath her statement under caution which amounted to a denial?"
"A remarkable feature of the case was that three of the witnesses for the defence -- Dearing, Bishop and the appellant's wife -- were not cross-examined. If the jury accepted their evidence, it appears to be physically impossible that the appellant could have been at the spot in Trinity Road, Wandsworth, at the time of the assault on the warder. In other words, none of the witnesses was given the opportunity of dealing with any objections by the prosecution to their evidence-in-chief. Nevertheless, when the trial approached its close, the jury were invited by the prosecution to disbelieve these witnesses. Without disbelieving them the jury could not have found that the appellant was present at and took part in the assault.
"Our attention has been directed to the summing-up, but in no passage did the Common Serjeant mention the fact that these three witnesses were left without being cross-examined. Although it was, undoubtedly, explained to the jury that the defence was an alibi, nowhere were they clearly told what the difficulties of the prosecution must be if the evidence of Dearing, Bishop and Mrs Hart should be accepted. Counsel for the Crown, in the exercise of his discretion, had given these witnesses the 'go-by', but the Common Serjeant did not formulate the difficulties arising from the conflict of evidence with regard to time, nor was the fact that the witnesses were not cross-examined mentioned.
"In our opinion, if, on the crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box or, at any rate, that it should be made plain while the witness is in the box that his evidence is not accepted. Here no questions were asked in cross-examination. Having regard to that matter, and also to the summing-up, we have come to the conclusion that the conviction was unsatisfactory and cannot stand, and the appeal ought to be allowed."
"If it was part of the client's case to challenge a witness as not speaking the truth at a trial on indictment, the professional advocate had to put the matter fully and fairly to the witness and, if that was not done and the advocate in his speech tried to rely on the falsity of the witness's evidence, the court should check him at once. However, in Magistrates' Courts frequently one party was represented by a person who was not a highly qualified professional advocate and was insufficiently skilled to appreciate the necessity of putting such matters to a witness for the other side. Any suggestion that the justices should do so was to be totally deplored. It was not the general practice, certainly it was not to be encouraged, that justices should interfere with proceedings in the same way as a professional judge very frequently could. To suggest that justices should give some indication they were not believing the evidence would be quite contrary to the general practice in their courts, and would be thoroughly undesirable . . . it could not be said, as a matter of law, that justices must accept a witness's evidence merely because it was unchallenged."
"We have not found this at all an easy case, but in the end we have come to the clear conclusion that the answer really lies in a proper appreciation of what section 9 of the Criminal Justice Act 1967 in fact achieves. As I have already said, this is that the contents of the statements read are evidence in the case just as if, and only to the extent as if, the makers of those statements had been called as witnesses in the trial and had given the evidence contained in the statements. If that had happened on the hearing before the King's Lynn justices in this case, and there had been no cross-examination about the possibility of a mistake, or their evidence had not been challenged in any way, then when the defendant went into the witness box, no doubt strong comment could have been made that nothing had been put to the witnesses about the possibility that the defendant might indeed have been able to and did buy the dress somewhere else, in Portsmouth in particular, on July 2 1981. Although any such comment by the prosecutor would have had substantial force and might well have led the justices to view the defendant's evidence with a degree of scepticism, the position remains that the burden throughout was on the prosecutor and although the proper procedure of putting a defence case to prosecution witnesses had not been followed, it would have been opened to the justices, having heard all three witnesses, to have said: 'Well, it may be that that procedure laid down by Marks & Spencer was what should have happened, and it may have happened in at least the majority, if not every other case concerning a dress of this nature, but we have also seen the defendant. She has given evidence. We cannot say that her evidence cannot be true, and in those circumstances, there must be a doubt in our minds and accordingly we must acquit.' If one realises that that is all that is achieved by a section 9 statement, then notwithstanding that criticism may be made of the fact the defendant's legal advisers did not give any appropriate notice requiring the makers of the statements to attend at the trial, we do not think that in the end it is right to say that the two halves of that opinion of the justices are necessarily inconsistent and the decision perverse."
"I take the view that legal representatives of defendants in criminal cases, whether before the justices or indeed in the Crown Court, should observe the well-known practice that you do put your case to witnesses for the prosecution, and the failure to give a notice under section 92(d) is not to be used as any sort of device whereby you can have the defendant present, giving evidence in person, and avoid the presence of the witnesses whose statements under section 9 have been served, and merely hear those statements read out in court . . .
"For the reasons which I have given in the circumstances of the present case, I do not think that it can be said that the justices came to a perverse conclusion. They were entitled to say that the defendant's evidence had raised a doubt in their minds, and if there was such a doubt then she has to be acquitted."
Stephen Brown J agreed with the judgment of May LJ.