R v Gillespie
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE WINN |
| Judgment Date | 17 January 1967 |
| Judgment citation (vLex) | [1967] EWCA Crim J0117-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 3066/66 No. 3143/66 |
| Date | 17 January 1967 |
[1967] EWCA Crim J0117-2
The Lord Chief Justice of England (Lord Parker)
Lord Justice Winn
and
Mr. Justice Willis
No. 3066/66
and
No. 3143/66
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. J. HAINES appeared as Counsel for the Appellant Gillespie.
MR. H.M. SELF appeared as Counsel for the Appellant Simpson.
MISS NINA COLLINS appeared as Counsel for the Crown.
These two applicants appeal on a Certificate as to a point of law granted by the learned Deputy Chairman at Inner London Sessions, raising the admissibility in cross-examination of certain documents. They were convicted on the 29th September after a trial lasting 12 days. There were 19 Counts in the indictment; the facts were complicated. At this stage it would be otiose to go into them in any detail. Each received a sentence of 4 months' imprisonment concurrent on certain counts of larceny together with sentences in some cases of 2 months for falsification of accounts and 2 months for forgery. The nub of the case, as is revealed by those sentences, was the larceny charges. For that reason it was right to pass smaller sentences for the other offences and to make them all concurrent, 4 months in total.
Gillespie was the manageress and Simpson the cashier of a retail shop, part of a chain of retailers of relatively low-priced female garments. The substance of the charge against them was that sometimes alone and sometimes jointly they entered up on the day-sheet which went to the head office recording the takings for the day, smaller sums of money against items of sale than had been received by the salesgirls who took the money from the customer and handed it in at the cash desk, where one or other of these ladies was always at the material time in charge of the procedure.
It was therefore essential and constituted the essence of the prosecution case, to prove that these various sums of money, £4, £5, £6, whatever it may be, in excess of the sums re-corded in respect of the same transaction on the day-sheet had been in fact handed in at the cash desk, and thus an opportunity arose to abstract feloniously those sum's of money and keep them for their own profit. The false entries alleged and the forgeries alleged were part of the machinery employed, it was said, by these women evidencing and establishing fraudulent intent, which of course was the other essential ingredient of the larceny charges.
At the trial, and again in this Court, there was consider-able discussion of the Rule of Practice on which the Court pro-nounced in the case of Rice, and in this Court attention was drawn to supporting authority in three speeches in the House of Lords in the case of Jones v. D.P.P., 1962 Appeal Cases at page 635, which is to this effect, that where the prosecution have available evidence to establish an essential part of the prose-cution case, that evidence should be called as part of the prose-cution case, and the prosecution should not, as a matter of proper practice, seek to supplement and complete the prosecution case by cross-examination of the accused; however, the essence of this case does not depend upon any such Rule of Practice.
It is right to say that Miss Nina Collins, who was prose-cuting, appreciated that Rule and did her best to introduce the evidence upon which she relied and upon which this appeal has turned during her own case for the prosecution; there was a ruling which was against her so doing. Whether or not the evidence which she then sought to tender would have been presented in satisfactory and complete form is not so clear.
In the ultimate analysis nothing could be more simple than the point which here arises, after a 12 day trial and quite a lengthy hearing in this Court.
It is elementary, at any rate as our Criminal Law now stands, that it is not competent to prove a fact against an accused person by producing a document in which that fact is...
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