Court of Criminal Appeal
| DOI | 10.1177/002201835702100105 |
| Published date | 01 January 1957 |
| Date | 01 January 1957 |
| Subject Matter | Article |
Court of
Criminal
Appeal
JUDGE'S POWER TO RECALL WITNESS AT CLOSE OF PROSECUTION'S
CASE
R. v. McKenna
THE appellant in this case (40 Cr. App. R. 65) was convicted
at the Central Criminal
Court
on counts of an indict-
ment
which charged him with the export of certain articles in
contravention of article 2of the Export of Goods (Control)
(Consolidation) Order, 1952.
In
order to be within the terms
of the
Order
the
goods had to be " goods subjected to any
process of manufacture, wholly or mainly of iron or steel"
and
at
the
close of the case for the prosecution it was
sub-
mitted on behalf of the defence
that
there was no case to
answer on the ground that there was no evidence
that
any of
the articles in question were made wholly or mainly of iron
or steel.
The
Commissioner thereupon recalled one of the
prosecution witnesses in order to give evidence of the materials
of which the articles were made and, after the witness had
given evidence, ruled that there was a case to go to the jury.
It
was argued on the appeal
that
the Commissioner was
not entitled to take the course he did.
It
was, however,
the
opinion of the
Court
(Lord
Goddard, C.]., Hilbery
and
Byrne
JJ.),
that
the
course taken was one which had been recognised
as being aperfectly proper course for many years.
It
is only
necessary to refer to R. v. Sullivan (1923 1
K.B.
47) where it is
at once to be seen
that
ajudge, in the circumstances in which
the
Commissioner acted in R. v. McKenna, has complete dis-
cretion whether awitness shall be recalled,
and
the
Court
of
Criminal Appeal will
not
interfere with the exercise of his
discretion unless it appears
that
thereby an injustice has
resulted.
It
was quite obvious
that
there was no injustice in
R. v. McKenna,
and
indeed
the
Court was of opinion
that
without
the
evidence of the recalled witness there would have
been sufficient evidence for the case to go to the jury.
The
Court
thought
that
there was also another way of
looking at the case. By the
Order
under
which
the
prosecution
26
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