R v Oliva
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 18 May 1965 |
| Judgment citation (vLex) | [1965] EWCA Crim J0518-2 |
| Docket Number | No. 294/65 |
| Court | Court of Criminal Appeal |
[1965] EWCA Crim J0518-2
The Lord Chief Justice of England (Lord Parker)
Mr. Justice Sachs
and
Mr. Justice Browne
No. 294/65
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
MR. J. HAZAN appeared as Counsel for the Applicant.
MR. G.J. SHINDLER appeared as Counsel for the Crown.
This Appellant was convicted at the Central Criminal Court last January of wounding one Brian Routledge with intent to do him grievous bodily harm, and was sentenced to eighteen months' imprisonment. He now appeals against his conviction by leave of the full Court.
This man, Brian Routledge, was undoubtedly attacked in a passage leading from the street into a club called the Bamboo Club in Frith Street, Soho, at about 11 p.m. on the 19th November. His left eye was swollen and closed, he had two cuts, one above the eye requiring three stitches, and another below the eye, and there were bruises on his head and body, and he was kept in hospital for some four days.
The prosecution case depended almost entirely on the evidence of three girls carrying on the well known occupation of hostesses at the Bamboo Club who were standing on the steps leading to the passage to the Club that evening, Brenda Price, Gaynor Gaylor and one Julie Saunders. Their evidence, as one would expect, was not wholly and entirely consistent one with the other, but quite generally their evidence was that while they were standing outside the Club, Routledge was talking to Gaynor, and a time came when the Appellant came along with two other girls and another man immediately behind him. They saw Routledge, who incidentally had been a doorman at this Bamboo Club previously go into the passage leading to the Club; and they said that the Appellant and the other man with him followed him in. According to their evidence the Appellant and the other man jumped on Routledge, kicking and hitting him. It is true that one of the girls described the pandemonium that broke out in this narrow passage where other girls were seen, and said she was unable to swear that it was the Appellant that was actually kicking Routledge. However, on reading her evidence as a whole, it is quite plain that there were only two men present, (the Appellant and the other man according to her) and that one or both of them must have been doing the kicking. Finally a man called Harry Hampden, who at that time was the doorman of the Club, was called to the scene and tried to stop the fight.
The Appellant's evidence was to this effect, that he had known Routledge for a number of years, that he had no quarrel with him, that he got on very well with him., that he, the Appellant, had come alone to the Club that night, that there were not two girls with him, that there was not another man with him, and that he had come with the object of having a friendly talk with the Manager of the Club, a Mr. Kay; that he had walked down this passage to see Mr. Kay, that Mr. Kay was not in and accordingly he came out; and that as he came out he saw a man; that it was too dark for him to realise that it was Routledge, whom he walked past, that that man who turned out to be Routledge was talking with two men, and that in a fight which took place he saw this man fall to the ground and the other two kicking him. For personal reasons, which can be well understood, he did not wish, so he said, to be mixed up in any trouble, and so he just walked out of the Club and went away.
One Harry Hampden, the doorman, gave evidence that when he came to the scene there was this fight going on, and that quite definitely the present Appellant was not one of the men. The victim, Routledge, also gave evidence at the trial, called by the defence, to the effect that somebody hit him from the back, and he could not say who it was, but bearing in mind that he had always been friendly and had no quarrel with the Appellant, he was sure it could not have been the Appellant. That summarises the evidence, and it was in those circumstances that the Jury convicted.
In order to understand the points raised in the Appeal, it is necessary to go back further to the inception of this matter. Routledge and Hampden had given statements to the Police; further at the first day of the committal proceedings Routledge was called by the prosecution and he gave evidence, largely confirmatory, of the girls' evidence. He described how he was talking to the girl Gaynor and the other girls were there; he stated that the Appellant came along with two more girls and another man known to him, and he named him as Tony Colletti; that they were invited by the Appellant to a party and they refused; and that the Appellant said: "Let's go in here and talk about it", meaning the passage. He said that as they walked along the passage he was hit from behind on the back of the head and went down. He said it was the Appellant who kicked him in the face. That was on the 8th December.
The committal proceedings were not finished that day but were adjourned to the 17th December. On the 14th December this man Routledge went to a Solicitor and made a declaration: the declaration, quite shortly, was to this effect that the statement he had made in Court on the 8th December was untrue, that it had been made as a result of threats by the Police, and that he wished to and did hereby declare that neither Mr. Colletti nor Mr. Oliva had participated in the attack. Accordingly, when the adjourned date of the committal proceedings arrived, the 17th December, Mr. Hazan very properly having heard about the matter drew the attention of the Solicitor for the prosecution to what had occurred. Routledge was then recalled in the committal proceedings and stated that it was not Oliva and Colletti who were there, and certainly it was not Oliva who had hit him. In passing, it is to be observed that, as I have already said, his evidence at the trial was not wholly to that effect, in that he said that he was struck from behind and did not know who it was who had struck him. So much for Brian Routledge.
Hampden, who had been due to appear as a prosecution witness on the 8th December, had failed to appear, and he was summoned to appear on the 17th. It appears now that on the evening or night of the 16th he took the same remarkable course that Routledge had taken, and went off to another firm of Solicitors and declared that the Appellant was not one of those that he had found attacking Routledge. He was called on the 17th December in the committal proceedings, and he gave evidence to the same effect. Both those witnesses, Routledge and Hampden, having given evidence in the committal proceedings, had their names endorsed on the back of the indictment.
The first and the important point in this appeal concerns the proper course which the prosecution should adopt in those circumstances. Let me say at once that whatever the result of this case, the Court is extremely indebted to the argument of Mr. Hazan, who has taken great care preparing that argument, and has if I may say so, presented it with great moderation. His main and first submission is that it is the duty of the prosecution to call or tender all witnesses who gave evidence in the committal proceedings, and whose names appear on the back of the indictment; and that that is the traditional and constitutional practice, and indeed the only practice which will ensure a fair trial. He points out the embarrassment which took place in the present case when the prosecution refused to call Routledge or Hampden, in that he was placed in the difficult position of deciding whether to call them, knowing full well that if they were called they would be cross-examined, as indeed they were, with considerable effect in regard to what had happened prior thereto.
In the alternative, he says if there is any discretion in the prosecution, it is a discretion which must be judicially exercised, and by "judicially exercised" he means in such a way as not to put the defence at any disadvantage. Accordingly he says in this case either the prosecution were bound to call or should in its proper discretion have called Routledge and Hampden.
The Court has been referred to a number of cases, beginning in 1823; it is unnecessary to go through all of them in detail. The position, as it seems to this Court, can be summarised in this way. Up to 1847, while there were statements to the effect that the prosecution were not bound to call witnesses whose names were on the back of the indictment, yet it was, to say the least, usual that they should; and undoubtedly individual Judges took a very strong line by requiring the prosecution to call them and in default calling those...
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...whose evidence has been served as part of the prosecution case. In regard to such witnesses, the position is stated by Lord Parker CJ in Oliva (1965) 49 Cr App R 298 at page 309 as follows: "The prosecution must of course have in court the witnesses whose names are on the back of the indict......
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