R v Irwin
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MICHAEL DAVIES |
| Judgment Date | 19 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J0219-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4134/B/84 |
| Date | 19 February 1987 |
[1987] EWCA Crim J0219-1
Lord Justice Watkins
Mr. Justice Michael Davies
and
Mr. Justice Owen
No. 4134/B/84
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. N. PHILO appeared on behalf of the Applicant.
MR. N. GODSMARK appeared on behalf of the Crown.
( Leave to appeal against conviction was granted. With counsel's consent the hearing of the application was treated as the hearing of the appeal).
On 12th January 1984 in the Crown Court at Nottingham before Mr. Recorder Perrett and a jury this appellant was convicted of two ofrences of criminal damage. On 3rd February 1984 he was sentenced to concurrent terms of 6 months' imprisonment suspended for 2 years and 3 months' imprisonment suspended for 2 years and ordered to pay a sum by way of compensation. No question arises here on the sentence.
It is a long time since the trial and that has been due to a series of events which has caused this case to be before this court certainly on two previous occasions. That is now all water under the bridge and has no influence on this substantive appeal, but it explains the delay.
It is important to bear in mind throughout, for reasons which will appear in this judgment, that this was a re-trial. There had been a previous trial, lasting about two days like this one, in December 1983.
The criminal damage was alleged to have taken place somewhere in the region of 6.30 in the morning of 29th January 1983. The prosecution's case was that on that occasion, when of course it would be dark, the appellant poured some corrosive fluid over two cars which were parked in the open road causing damage to them. The cars belonged to a Mrs. Cumberland and a Mrs. Goddard. The only evidence against the appellant was that of Mrs. Cumberland, who claimed to have had an eye witness view from her house, and a grand-stand view at that, of the appellant damaging at least one of the two cars. She gave evidence at both trials. We have not seen her evidence given at the first trial. We have seen the evidence she gave at the second trial and she was vigorously cross-examined by counsel for the appellant as to her identification, as one would expect. She knew the appellant. This was not a fleeting glimpse case. She gave positive identification of him. He denied the offence to the police and denied it in the witness box.
Today counsel puts this appeal under two heads. The first may be shortly stated and disposed of. Mrs. Cumberland in her evidence said that two lights which would have helped her vision were on. It was proved that they were not on at the material time. They were outside lights on one of the houses. She made a mistake about that. The learned recorder recognised that fact. He specifically reminded the jury about it. In accepting Mrs. Cumberland's evidence, as plainly the jury did, they must have had well in mind that error which she had made. It was also pointed out by counsel for the appellant in cross-examination to Mrs. Cumberland that when she was first seen by the police on the day of the incident she made a statement in which she did not categorically say that she had actually seen one at least of the offences being committed. It was not until she made a second statement some time later that she gave that vital evidence which later formed the basis of her sworn testimony. Her explanation for that was what is sometimes given as an explanation, rightly or wrongly, that nobody had asked her when she made her statement to deal with that point. The recorder realised perfectly well what was being said. He referred to it. Although counsel who today appears for the appellant, but who did not appear at the trial, has criticised the way in which the learned recorder dealt with this aspect of the case, we find no basis for that criticism at all. He dealt with it fairly and once again the jury can have been in no doubt that Mrs. Cumberland's evidence was subject to that criticism.
That having been said, it should also in fairness to the recorder be stated clearly that no other criticism is made, nor could it be made, of his conduct of the trial or in particular of his summing-up. It was fair, clear and correct in law and particularly in its warnings to the jury as to the dangers of relying upon a single identification. If the matter stopped there, there would be no basis whatsoever for interfering with this conviction.
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