R v Cleghorn
Jurisdiction | England & Wales |
Court | Court of Appeal (Criminal Division) |
Judge | THE LORD CHIEF JUSTICE |
Judgment Date | 20 February 1967 |
Judgment citation (vLex) | [1967] EWCA Crim J0220-1 |
Docket Number | No. 2271/66 |
Date | 20 February 1967 |
[1967] EWCA Crim J0220-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Parker)
Lord Justice Diplock
and
Mr. Justice Ashworth
No. 2271/66
SIR LIONEL THOMPSON appeared as Counsel for the Appellant.
MR. J. LEONARD appeared as Counsel for the Crown.
At the Central Criminal Court last July this appellant was convicted of rape, and sentenced to 6 years' imprisonment. He now appeals to this Court against his con-viction. Having regard to the point raised in this case, it is unnecessary to go through the facts in any detail. The prosecution case was that a young French au pair girl of 19 called Martine had been raped by this appellant on the evening of the 4th March of last year.
The case against him rested on the evidence of Martine and of a friend of hers, another girl called Therese. According to them they had been to a club called The Europa Club in Finchley Road, they met the appellant and a man called Geoff Thompson, and that after some time there they had gone away in a car and had finally ended up at the Appellant's flat.
As to what took place there, Martine and the other girl maintained that the appellant's manner changed, that he started making obscene jokes, that he ordered Thompson and Therese into another room, producing a gun which later proved to be a toy gun, that he then made Martine undress and raped her twice.
At an early stage in the case the Judge was clearly concerned as to whether any of the parties were going to call Geoff Thompson, and before the prosecution case had ended he said this: "I shall wait with interest to see what evidence the defence call and whether Geoff is called, but if, at the end of the case for the prosecution and the defence Geoff is not called by either side, I shall have to consider whether I, as the Judge presiding over this Court, shall not exer-cise my undoubted right to have Geoff in the witness box".
In due course the defence opened and closed their case, the defendant alone being called; the Judge meanwhile had issued a subpoena to Geoff Thompson. Finally the Judge said: "In the circumstances, as neither the prosecution nor the defence have seen fit to call Thompson, I think in the inter-ests of justice it is only right that the witness Thompson should be called to give evidence, so the Jury can form some conclusion as to his reliability". Thereupon Thompson was called and examined by the Court, and was cross-examined by both the prosecution and the defence. His evidence, if be-lieved, strongly supported the prosecution's case.
The first and main ground of appeal here, and the only one with which the Court finds it necessary to deal, is the submission that the learned Judge should not have called this witness, as he did, at the end of the defendant's case.
It is abundantly clear that it in the right of a Judge in a criminal case where the liberty of the subject is at stake and where the sole object of the proceedings is to make certain that justice should be done as between the subject and the state, that he should have a right to call a witness who has not been called by either party. It is clear, of course, that the discretion to call such a witness should be carefully exercised, and indeed, as was said in Edward's case in 3 Cox's Criminal Cases at page 82 by Mr. Justice Erie: "There are, no doubt, cases in which a Judge might think it a matter of justice so to interfere;...
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