R v Jones (John)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 09 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Crim J0309-6 |
| Docket Number | No. 4589/B/75 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 March 1976 |
[1976] EWCA Crim J0309-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice James
Lord Justice Geoffrey Lane
and
Mr. Justice Cobb
No. 4589/B/75
No. 4792/B/75
MR. G. ROSE appeared for the Appellants.
MR. C. CLARK appeared for the Crown.
On the 22nd September of 1975 at the. Crown Court at Winchester, John Jones and Christopher Smith were convicted of burglary contrary to section 9(1)(b) of the Theft Act, 1968. By leave of the single Judge each appeals against his conviction. Strictly speaking one of the grounds upon which the appeal has been argued relates to a point of law and leave was not necessary as, where a point of law is raised, there is a right of appeal without leave of the Court. Be that as it may, the matter comes before us and has been argued on behalf of both of the Appellants by Mr. Rose, who has taken all the points that were open to him. He has not sought to argue the matter which was put forward in ground 3 in each of the grounds of appeal and, if we may be permitted to say so, there was every reason why he should not advance an argument on that ground because when one looks at the transcript of the summing-up it was not a ground that could be substantiated.
The facts of the matter which gave rise to the charge of burglary were these. Christopher Smith's father, Alfred Smith, lived at 72 Chapel Lane, Farnborough. He was in the courses of negotiating a move from that house to other premises. At the material time, in May of 1975, in that house were two television sets; one owned by Mr. Alfred Smith, the other owned by another person but lawfully in the possession of Mr. Alfred Smith. Christopher Smith lived with his own family at Aberfield. The Appellant Jones lived in the opposite direction from Chapel Lane, Farnborough to Aberfield, namely in Lakeside Road, Ashvale.
In the early hours of the 10th May last year a police officer in Ashvale saw a motor car with the two Appellants inside and a television set protruding from the boot of the car. Having regard to that which he saw and the time of the morning he followed the car which turned into a side road where eventually it was stopped by a gate being in its way. The officer called for further officers to attend and when another officer went to the car he saw the Appellant Jones sitting on the back seat with a second television set beside him. In the front of the car was Smith. They were told that the police believed that the television sets were stolen and that they were being arrested. Smith responded with the question: "Are they bent?" and Jones made the observation: "You cannot arrest me for just having a ride in a car."
When, at the police station, they were searched, Jones was found to have in his possession a pair of pliers. Another police officer, D.S. Tarrant, who gave evidence for the Crown, had received a report from Mr. Smith (senior) and, as a result, had gone off to 72 Chapel Lane where Mr. Smith had pointed out a window in the front bedroom, which window had a hole in it due to an old breakage. The window had been secured with what appeared to be cleanly cut cable tied between the handles of the window. In the living room of the house the officer found a further quantity of cable which had also been cut and the ends of the cut were clean. That cable was subsequently ascertained to have come from the two television sets that had been in the room. The television sets that had been in the room were the same television sets that were in the car in which the Appellants were found and there was no dispute about that.
The rest of the evidence for the Crown concerned conversations between police officers and the Appellants in the course of investigating the alleged theft of the television sets by burglary D.S. Tarrant gave evidence of Jones' denial that he had done anything and sand also that Smith, in answer to the question "Where have the television sets come from?" had sand: "My Dad's, he told me I could take them". When he was asked when he took the television sets he replied "This morning, we went and got them. We was going to take them to my place for safe keeping." He went on to explain that his father was intending to move house. The officer, according to his evidence, then told Smith that his father had reported them to have been stolen. Somebody had broken into the bungalow and Smith is sand to have replied: "No, I went there, the door was open and we went in and took them, we were only going to look after them." Asked "Why at that time of the morning" there was no reply. Asked why they drove away when the police tried to stop them Smith explained that he had got no car tax, and no insurance for the use of the motor vehicle. Asked why, if they were taking the sets to Aberfield, they were in fact going in the opposite direction when travelling from Mr. Smith (senior) house, the explanation was given by Smith that they were just popping to Jones' house for a while.
Jones was seen independently of Smith and he gave an account as to what he had to say about being found by the police in such circumstances in which he sand: "I don't know about the stolen bit. All I know is that Chris came to my house this morning and asked me to go with him to Aberfield and I decided to go. We then got stopped by you lot, and that is it." He sand he saw the television set in the vehicle but did not know that they were stolen. Asked about the pliers that were in his possession he sand that they were on the floor of the car and he had picked them up. He did not know to whom they belonged. He denied that he had been in the premises of Mr. Smith (senior). There were further comings and goings between the police officers and the two Appellants who were seen individually on each occasion. Each of them gave various answers to questions that were put to them and it was not disputed at the trial that each of the Appellants had told lies to the police; in particular, it was not disputed by Smith that he had given a false name and address. It was not disputed by Jones that he had been deliberately obstructive when interviewed by the police and that he had lied when he had told the police that he had not gone into the house. There is no useful purpose to be served by repeating in detail the questions and answers that were given. The point that is raised can be dealt with without such recitation.
At the trial both of the Appellants gave evidence. It was the case for Smith that he had permission from his father to go into the house of his father. With that permission was a general licence to go there at any time he wanted to. It was the case for Jones at the trial that, contrary to what he had sand to the police, he had gone into the house, he had gone purely as a passenger with Smith and gone in in the belief, honestly held, that Smith had permission to take the television sets from his father and that in taking them Smith was not stealing them or acting in any dishonest way. He himself, in so far as he was: concerned with the matter, was not acting in any dishonest way.
There was a discrepancy in the evidence of Smith between what he sand on oath at the trial and what he had sand to the police officers in relationship to the situation in which he had gone into his father's house and had not spoken to his father, although his father was present in the house (and admittedly present) to his knowledge. In his answers to the police he had given the answer that, as he put it, "we" that is Smith and Jones, thought Smith's father had been drinking and "we" (Smith and Jones) did not wish to disturb him.
He sand that they had gone in with some degree of noise, they had flushed the lavatory, put on the light, shouted "Hello" received no answer and, from the circumstances, thought his father must be out. I hope that sufficient has been sand as to the facts of the matter to enable the argument and the judgment of this Court upon the argument to be followed.
The first point taken by Mr. Rose on behalf of the Appellants in this case is that which is canvassed in ground 4 of the grounds of appeal submitted to this Court on behalf of Jones, which relates to this unusual feature of the case that Mr. Smith senior had been called to give evidence for the Crown and had been treated by the Crown as a hostile witness, with leave of the Court. The jury were, in those circumstances, informed of the fact that Smith senior had made witness statements prior to the trial which were in complete contradiction to his evidence at the trial; the latter evidence being that he had given unreserved permission to his son, Christopher, to enter the house and sand in terms: "Christopher would not be a trespasser in the house at any time."
Arising out of that situation the learned Recorder had given a direction to the jury that though they might, if they chose to do so, find that Mr. Smith's evidence seemed more favourable to the Appellants,...
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