R v Ditch
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE O'CONNOR |
| Judgment Date | 20 August 1969 |
| Judgment citation (vLex) | [1969] EWCA Crim J0820-3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 August 1969 |
| Docket Number | No. 2085/69 |
[1969] EWCA Crim J0820-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Phillimore
Mr. Justice Willis
and
Mr. Justice O'Connor
No. 2085/69
MR. M. HARRIS appeared on behalf of the Applicant.
MR. I. ALEXANDER appeared on behalf of the Crown.
On the 10th March, 1969 at the Windsor Borough Quarter Sessions this Applicant was convicted by a majority of 10 to 2 of burglary, and was sentenced to twelve months' imprisonment. He applies for leave to appeal against his conviction and sentence.
So far as his conviction is concerned, the facts are within a comparatively short compass. The following facts were not in dispute. This Applicant, who is now 29 years of age, had been a customer of the Universal Service Garage for a number of years, and on the 10th January, 1969 he drove his car up to the garage - a green Hillman motor car - and asked for four gallons of petrol. He had with him, and there is no dispute about this, a young man named Davis, who was a friend of his, and, indeed, he borrowed a £5 note from Davis to pay for the petrol and he handed that money to a man named Cooper, who was the forecourt attendant. Cooper went to the till which was in the office behind a partition and he got change, and Cooper noticed while he was talcing the change that there was about £60 in the till. Having got his change, the Applicant got back into his car and was seen to start to reverse towards the main road. Cooper went to serve two women who wanted some help, and he had to go and get a spanner from another part of the garage.
At that stage evidence was given by Mr. Bampton that he came to the pumps, saw the green Hillman standing there and that as he went to the office the Applicant was coming out; he was known to the Applicant. According to the Applicant, he had, indeed, gone back because he remembered that he needed some new plugs, and he had gone in to ask about them, but when he got into the office Cooper, the forecourt attendant, was not there and that he did not know that Davis, who had also got out of the car saying he was going to the toilet, had, in fact, gone into the office ahead of him.
Mr. Cooper saw, first of all, the Applicant coming out. He heard a rustling noise behind the partition, then, out came Davis. According to Mr. Bampton, both men were seen to get into the motor car and drive away. When Cooper came back he noticed that the till had been emptied and the £60 was gone.
Mr. Pelletier, who was the owner of the garage, was told about what had happened, and the fact that the Applicant had been there, and his car had been there, and he and his friend had been seen coming from the office, obviously raised a suspicion that they were responsible for taking the money.
The matter was reported to the Police, but within an hour or two the Applicant came back to the garage by himself asking about some sparking plugs, and he was tackled about this matter. The Police were sent for, and he was perfectly open as to who he had been with and what he was doing, and the evidence of both Bampton and Pelletier was that at no stage did the Applicant show any sign of embarrassment about this matter, that he did not try to run away and his defence throughout has been "I know nothing about it, that if the money was taken by Davis he did it without any knowledge on my part", and, indeed, at that stage Davis hotly denied that he had anything to do with the theft.
In the result, it is not surprising that the Jury without difficulty, and by a unanimous verdict, convicted Davis of stealing the money. However, they had difficulty as far as the Applicant was concerned, and after coming back and asking for further directions as to joint participation in crime, and later coming back and saying they could not reach a unanimous verdict, and being properly directed by the Assistant Recorder, they found the Applicant guilty by a majority of 10 to 2.
A couple of days afterwards Davis told the Applicant in prison that he was very sorry and that he, Davis, had taken the money, and he wrote a letter to his solicitors in these terms "I am writing to you to let you know that Mr. P. Ditch is not guilty of the offence that we were both charged with. I took the money before he walked into the garage and hid it in the toilets behind the Bull Hotel Peascod Street and did not tell him as I thought I would get away with it.
"If you could come and see me I would like to make a statement to that effect".
It was in those circumstances that this application for leave to appeal came before the Court, and it was first before the Court on the 8th July of this year. The Applicant was not represented, and this Court adjourned the matter so that the Applicant could be represented, granted him full legal aid and directed that an inquiry should be made as to whether Davis was prepared to give evidence. In the result, there was an application before this Court to receive the evidence of Davis.
He has, in fact, in August of this year made a long statement to the Applicant's instructing solicitor, in...
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John Peng v The State [1982] PNGLR 331
...659; 53 ALJR 733, The Government of Papua New Guinea and Davis v Barker [1977] PNGLR 386, R v Aldrich [1962] Crim LR 541, R v Ditch (1969) 53 Cr App R 627, R v Flower and Ors (1966) 50 Cr App R 22, R v Lattimore and Ors (1976) 62 Cr App R 53, R v Liosatos [1964] SASR 40, R v McDermott (No 1......
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