R v Harrow Crown Court, ex parte Dave
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE PILL |
| Judgment Date | 18 October 1993 |
| Judgment citation (vLex) | [1993] EWHC J1018-6 |
| Docket Number | No: CO-36-92 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 October 1993 |
[1993] EWHC J1018-6
Before: Lord Justice Kennedy and Mr Justice Pill
No: CO-36-92
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
MR A NICOL (instructed by Sheridans, London WC1R 4QL) appeared on behalf of the Applicant.
MISS O'NEILL ( MISS D HURTLEY on 18/10/93) (instructed by Crown Prosecution Service, DX 4204, Harrow 1) appeared on behalf of the Respondent.
Monday, 18th October 1993
Mr Justice Pill will read the judgment of the Court.
Mrs Geeta Dave seeks an Order of Certiorari to quash a decision of His Honour Judge Gosschalk and two lay Justices sitting at Harrow Crown Court on 7th October 1991, whereby they dismissed an appeal from a decision of the Harrow Justices made on 19th November 1990. The Harrow Justices had convicted her of an offence of assault occasioning actual bodily harm.
The Applicant runs a sub post-office and newsagents at Harrow on the Hill. Mr and Mrs Martin O'Reilly lived in a nearby hotel. On the morning of 16th August 1990, when Mr O'Reilly was in the shop, he was told by the Applicant that he needed a bath. When Mrs O'Reilly heard of this she visited the shop with Miss Manek who is the daughter of the hotel's owner. According to Mrs O'Reilly, when the shop had emptied of customers, she asked the Applicant why her husband had been told he smelt and needed a bath and the Applicant leant across the counter and struck Mrs O'Reilly on the face. Mrs O'Reilly, who was heavily pregnant at the time, said as a result of the blow her face was all sore and swollen. She had an appointment at an ante-natal clinic that afternoon and she said that she told the hospital staff what had happened at the post office. She said she was told that her blood pressure was pretty high.
The Applicant denied hitting Mrs O'Reilly. Other witnesses including two independent witnesses said that they were present in the shop at the time of the alleged assault and gave evidence that although voices were raised there was nothing to suggest that the Applicant had struck Mrs O'Reilly. A character witness was also called, the Applicant being of good character.
Mr O'Reilly and Miss Manek gave evidence at the Magistrates' Court. Mr O'Reilly also gave evidence at the Crown Court. He was not a witness to the alleged blow but he gave evidence that his wife was upset after her encounter with the Applicant. At the Crown Court he also said that his wife had a red mark on her face after the encounter. He entered the shop immediately after the incident and the Applicant did not deny delivering the blow, he said.
At the Crown Court, an unsuccessful application was made to put Miss Manek's statement in evidence in her absence. In support of the application her father, Mr Manek the hotel owner, was called to state that she was unavailable and indeed was abroad.
Medical evidence was called as to the interview and examination of Mrs O'Reilly at the hospital. There was no reference in the medical record to any complaint by her of assault or of any marks upon her. Dr S Bhide said that her blood pressure was normal and that any injury observed or reported by the patient would have been recorded.
The case was first listed before a Crown Court on 31st May 1991. It was relisted and the Applicant was convicted following a three-day hearing on 7th October 1991. Between the two hearings, prosecuting counsel advised in writing that "it would seem to me that the CPS may wish to consider whether, in all the circumstances, it would be in the public interest to continue."
The first of the Applicant's two principal submissions is that she was not treated fairly because Mr O'Reilly had a conviction for dishonesty which was not disclosed to the defence. Further, Mr Manek had previous convictions which were not disclosed. Mr O'Reilly had been convicted of theft in October 1987 and fined £100. Mr Manek had a number of convictions, including a conviction for affray in March 1984.
Mr O'Reilly's conviction was known to the prosecution but there is an issue as to whether it was disclosed to the defence. The Defendant was represented by counsel and solicitors both of whom have sworn affidavits. The prosecution was also represented by counsel and he too has sworn an affidavit.
Miss O'Neill, who has appeared for the Crown Prosecution Service before this Court, but who did not appear below concedes that, in the circumstances, the existence of Mr O'Reilly's conviction should have been made known to the defence at the Crown Court hearing, whether or not they asked for information about previous convictions. In our judgment, that concession is properly made in the circumstances of this case. We have been referred to authorities, including the comprehensive review of them by Cooke P giving the judgment of the Court of Appeal of New Zealand in Wilson v Police and Elliott (transcript 20th December 1991) upon the extent of the duty of disclosure. We do not consider it necessary or appropriate to attempt any general statement of principle in the present case, save to adopt the words of Lawton LJ in R v Hennessey (1978) 68 Cr App R 419 at 426 where he said that the Courts must
"keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence."
Miss O'Neill submits however that the defence have not established that the conviction was not disclosed. Prosecuting counsel has stated that his recollection was that he had handed over lists of previous convictions at the May hearing. The Applicant's solicitor, on the other hand, has said that he was not told of Mr O'Reilly's conviction and there is no reference in his file to previous convictions having been disclosed. Counsel for the Applicant at the Crown Court also says that he had no recollection of being told of prosecution witnesses having any previous convictions.
There is no doubt that prosecuting counsel knew of Mr O'Reilly's previous conviction and Miss O'Neill submits that he is likely to have disclosed it. For the Applicant, Mr Nicol submits that defence counsel at the Crown Court, having a client of good character, would in the circumstances of this case inevitably have put the conviction to Mr O'Reilly had he been aware of it.
Having considered the detailed affidavits and the submissions of counsel before this Court, we have come to the conclusion that the defence were not informed of Mr O'Reilly's previous conviction. In reaching that conclusion we in no way impugn prosecuting counsel's good faith in swearing his affidavit. A strong pointer that the conviction was not disclosed at the May hearing emerges from a letter written by the Applicant's solicitor to the Applicant's insurers immediately after that hearing. In that letter he said that he was "pleased to report the following developments favourable to your insured's case". He referred inter alia to the disappearance of Miss Manek and to prosecuting counsel's preparedness to advise that the case be dropped. He concluded that:-
"for all these reasons it is felt by the insured and by counsel and indeed ourselves that the appeal is more likely to succeed than before."
If the solicitor had known of the conviction, its existence would almost certainly have been stated by the solicitor in that letter.
Miss O'Neill concedes that, since any failure to disclose a prosecution witness's previous conviction goes to the fairness of the hearing at the Crown Court, judicial review is the appropriate avenue by which to seek relief. We agree (see R v Bradford Justices ex parte Wilkinson [1990] 1 WLR 692).
In the circumstances of this case, Mr O'Reilly's previous conviction was a relevant consideration. It was he who, and for the first time in the Crown Court, sought to corroborate his wife's evidence by claiming that his wife had a red mark on her face. In a case in which there was a serious dispute of fact between him and his wife on the one hand and several witness, including independent witnesses on the other, his credibility was very much in issue. He gave evidence additional to that given in the Magistrates' Court. Had the Court known of his recent conviction for dishonesty, its members may well have taken a different view of his credibility and that would have been likely in turn seriously to affect the credibility of the Complainant.
We would quash the decision of the Crown Court on this ground. That being so, it is not necessary to determine whether Mr Manek's convictions ought to have been disclosed. There is no doubt that they were known to the prosecution and were not disclosed. He however was called only on a collateral issue, the non-availability of his daughter as a witness. It is quite possible that had they known of Mr Manek's record, the defence would have put a case of collusion between the O'Reillys and the Maneks which they considered but did not put on the information then available to them. In the circumstances however, we do not need to resolve that issue.
Mr Nicol's second principal submission is that the Crown Court Judge was obliged to say more than he did as to why the Court came to the conclusion that the appeal must be dismissed. He said no more than the following two sentences:-
"Over the course of 3 days we have had ample opportunity to hear and to assess the witnesses. It is our unanimous conclusion that this appeal must be dismissed."
Mr Nicol began in relation to this part of the case by submitting that a Court is generally...
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