R v Falconer-Atlee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 07 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1207-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 831/C/73 |
| Date | 07 December 1973 |
[1973] EWCA Crim J1207-1
Lord Justice Roskill
Mr. Justice Nield
and
Mr. Justice Mars-Jones
No. 831/C/73
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. R.A. GATEHOUSE, Q.C and MR. D. WHEATLEY apeared on behalf of the Appellant.
MR. COLIN NICHOLLS appeared on behalf of the Crown.
The Appellant, Mrs. Joan Olive Falconer-Atlee, is a lady of impeccable antecedents. On 29th January 1973, she was convicted at Croydon Crown Court of theft of a puppy known as "Sea Shanty, and Judge Morton, before whom the trial took place, ordered her to pay £50 by way of a fine. She sought leave/to appeal against that conviction, and the full Court granted her leave on 5th September this year.
A number of grounds were then advanced before the full Court in seeking and obtaining leave. It was not so much for the reasons given in the grounds of appeal that leave was then given, but for another reason which Lord Justice James in giving the judgment of the Court made plain. It was this, that the alleged theft, if theft it were, was in one sense a relatively trivial offence, but the Appellant is a lady with an impeccable reputation as a dog breeder, and is registered as a dog breeder of repute; for a conviction of this kind to be sustained would have disastrous results to her reputation and consequences far beyond the financial penalty imposed. Lord Justice James said, "The reason we are doing that is quite clearly the implications of a conviction of this sort upon the Applicant are very grave indeed in the circumstances of this case. We feel it right that she should be allowed to argue her case before the full Court and for the full Court to have the opportunity of hearing counsel in reply, the prosecution not being represented today."
The charge against this lady arose out of an ordinary routine transaction in connection with the sale of a dog. The events in question took place in 1972. A Mrs. Skinner, who owned the dog which is alleged to have been stolen, lived in East Dulwich, and she, like the Appellant, bred and sold toy poodle dogs. On 18th April 1972 she had a litter of four black puppies which consisted of two dogs and two bitches. The bigger of the two dogs was named "Ben", as he was called for short, and he suffered from a certain physical defect, that only one of his testicles had dropped. Neither of the dogs were fit for breeding owing to the fact that there was apricot in their pedigree.
On 15th June, some two months after the birth of the litter, Mrs. Skinner advertised the two dog puppies for sale, asking £30 for the smaller, and £20 for Ben. On 16th June, and this seems to have been common ground, the Appellant, who appears to have seen some advertisement in a dog breeders newspaper, telephoned Mrs. Skinner to the effect that she was interested – this was Mrs. Skinner's evidence – in buying the dog which was advertised for £20. On 18th June the Appellant and her husband called on Mrs. Skinner.
According to Mrs. Skinner, she showed them the two puppies and their pedigrees, and pointed out that they were unfit for breeding purposes, but she was satisfied that the Appellant wanted Ben as a pet. According to her, the Appellant had taken Ben on her knee and had pointed out that he had only one testicle. Mrs. Skinner then observed "It doesn't matter, you only want him as a pet." According to Mrs. Skinner, the Appellant replied, "That's right.". She added that she preferred Ben because of his head.
Then, again according to Mrs. Skinner, a cheque for £20 was handed over. They went downstairs with the Appellant carrying Ben. In the back hall of Mrs. Skinner's house there were other puppies. Amongst the other puppies that were there was a fourteen-week old puppy called "Sea Shanty". It was owned, according to Mrs. Skinner, jointly by her and a lady called Mrs. Wright. Sea Shanty was smaller than either Ben or Ben's brother. Mrs. Skinner put the value of Sea Shanty at a very high figure, something of the order of £150, but this was strongly in dispute and the defence called evidence to show that Sea Shanty was only worth of the order of £30 or so.
The puppies were playing about in the back hall. The Appellant had expressed some interest in the apricot puppies. Mrs. Skinner opened the gate leading to the back hall. This caused the puppies to rush out. The Appellant then bent down and helped her push the puppies back behind the gate. The ladies then went into an adjacent whelping room. Again, according to Mrs. Skinner, when the ladies came back into the room, the Appellant was carrying a puppy under her coat, and the explanation given was that the Appellant was doing this because it was raining outside.
After the Appellant and her husband had left, Mrs. Skinner discovered that Ben was still there, but Sea Shanty had disappeared. It was Mrs. Skinner's evidence that the only transaction which had taken place in accordance with the intention of both buyer and seller was a sale by Mrs. Skinner and a purchase by the Appellant of Ben, and that there had never been any intention on either side, of Mrs. Skinner selling and the Appellant buying Sea Shanty.
The fact that Ben was there and Sea Shanty had gone having been discovered, Mrs. Skinner telephoned the Appellant that evening that a mistake had been made and that the Appellant had the wrong puppy. She said she wanted to call on the Appellant and make a change. According to Mrs. Skinner, the Appellant replied that she was keeping Sea Shanty, and that if a mistake had been made, that was just too/bad. There was then a conversation about her having got the wrong pedigree, to which the Appellant was alleged to have replied that unless Mrs. Skinner sent her Sea Shanty's pedigree, Mrs. Skinner would be reported to the Kennel Club. Mrs. Skinner was adamant in her evidence (we had a full transcript of her evidence) that she never intended to part with Sea Shanty, and that however it was, whether by mistake or dishonesty, that the Appellant came into the possession of Sea Shanty, she, Mrs. Skinner, at no time had ever agreed to sell or intended to agree to sell Sea Shanty to the Appellant.
The Appellant, of course, challenged a great deal of this, and in essence her defence was that the dog which she got, namely Sea Shanty, was the dog which she, the Appellant, had intended to buy, which she, the Appellant always thought Mrs. Skinner intended to sell, and if that was not the dog which Mrs. Skinner had intended to sell, that was Mrs. Skinner's fault and not the Appellant's. That, in a nutshell, was the defence that was advanced in this long trial before Judge Morton and the jury earlier this year.
Now, it is clear on those facts as I have related, that there were three possible views. The first was that the Appellant had quite deliberately, when in Mrs. Skinner's house, done a switch of the puppies, and having had Ben on her knees at one moment, put Ben down in the back hall when the puppies had come out from behind the gate and had substituted Sea Shanty for Ben. The second was that what had happened, happened through a mistake on her part, but that when she had the mistake pointed out to her, she quite deliberately and knowing the truth, decided that she was at all costs going to hang on to Sea shanty, and make up a story to justify her so doing. The third possibility was that Mrs. Falconer-Atlee's story was true, or at least might have been true, in which case she was guilty of no act of dishonesty of any kind.
It seems that when this case was opened by counsel for the Crown – not Mr. Nicholls – he did not make, but on the contrary expressly disclaimed to the jury, any suggestion that there had been a deliberate switch in Mrs. Skinner's house. The Crown case was opened on the basis that this was, what in lawyer's language can be called, a "section 3 case". In other words Mrs. Falconer-Atlee had come by Sea Shanty honestly but mistakenly, subsequently became aware that a mistake had been made, and thereupon with knowledge that a mistake had been made, later that same day dishonestly misappropriated Sea Shanty. That, as I say, was the Crown's case opened to the jury. Mrs. Skinner gave evidence. Having read the whole of Mrs. Skinner's evidence, this Court cannot doubt that counsel at the trial must later have wished that he had opened the case on the basis that the jury might convict on either of these two possible bases. But he did not do so.
At the close of the case for the prosecution there was a submission on behalf of the Appellant of no case to answer. I should have mentioned earlier that the Appellant's husband was also charged with this offence. A similar submission was made on his behalf. The learned Judge upheld the submission on behalf of the husband, and directed an acquittal, but he left the case against the Appellant to the jury. It was at that stage that matters began to go seriously wrong at the trial, and, the Court says this with great respect, the learned trial Judge must bear a part of the blame for what happened.
At the outset of the submission, which was properly made in the circumstances (whether it was to be successful or not) by Mr. Wheatley who was then appearing for the Appellant, the learned Judge said at page 3 of the short transcript: "Mr. Wheatley, you and I have had experience of each other for some years. If you have a submission which is not infrequently made at this stage of the case, unless there is some particular aspect of the law which may be confusing to the jury to hear, I think it is better that the Jury should know what is going on and that they should hear it. If you tell me that you want to raise a point...
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