R v Pitt
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE PAIN,LORD JUSTICE KERR |
| Judgment Date | 02 April 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J0402-6 |
| Docket Number | No. 5184/C2/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 April 1982 |
[1982] EWCA Crim J0402-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Kerr
Mr. Justice Pain
and
Mr. Justice Beldam
No. 5184/C2/81
MR. M. WOOD appeared on behalf of the Appellant.
MISS D. QUICK appeared on behalf of the Crown.
On the 21st October, at Chelmsford Crown Court, the Apellant was found guilty on one count of assault occasioning actual bodily harm. He was found not guilty on another similar count. He was sentenced as follows: for assault occasioning actual bodily harm, 18 months' imprisonment; for breach of a suspended sentence, 12 months' imprisonment concurrent; for breach of a community service order, 3 months' imprisonment concurrent. His total sentence was one of 18 months' imprisonment. He now appeals with the leave of the single judge.
This was a baby battering case. The prosecution case was that on the 22nd January, 1981, Mrs. Pitt was visiting a next door neighbour and the Appellant, her husband, was at home with their two children, Ian Andrew aged 2½ years and Louise Maria aged 8 months. From the next door neighbour's house Mrs. Pitt heard Louise crying and hurried home. She found the baby's face bruised. On 23rd January, the baby was examined by a doctor who found bruises and abrasions on her face, eyelids, nose and bridge of the nose. There was also a swelling of the nose. When questioned about these injuries the Appellant attributed them to her having been hit in the face with a toy telephone by the little boy Ian. He claimed that at the time he was asleep and only woke when his wife came home. This was the subject of Count 1.
Count 2 related to a later remarkably similar incident. On 1st March, 1981, the Appellant telephoned the social workers to say that the baby had again been injured. When one of the social workers arrived the Appellant pointed out to him that had he, the Appellant, caused the injuries he would not have telephoned them. Again it was the baby's face that had been injured. The Appellant said that the baby had been upstairs in her cot; that she had cried for an hour and that he then went up to her and found her face injured. He suggested that the Injuries had been caused by Ian hitting her in the face with a toy gun. The social worker found Ian fast asleep in bed. Mrs. Pitt, who had been out, arrived home and stated in the presence of the Appellant that injuries always occurred when she was out. The baby was examined by a doctor who found multiple small bruises and abrasions on her forehead, eyelid, nose, cheek and ears. There were at least 12 separate injuries which had been caused by a minimum of 12 blows. The Appellant told the doctor that the baby was upstairs in her cot and that he was downstairs. She cried, as she often did, and he left her to settle down. She did so, but about an hour later she cried again and he went up to her. He found her injured and he could only assume that the injuries had been caused by the little boy with a toy gun. He did not say that the baby had cried continuously for an hour. The doctor was of the opinion that, although the injuries could have been caused by a 2 year old child with a toy gun, it stretched her imagination to believe that they had been so caused. She would not have expected so many blows, even from an aggressive child, and it assumed too much forward planning - to get the gun and to climb into the cot - because she was of opinion that the injuries could not have been caused by him from outside the cot.
The prosecution called Mrs. Pitt to give evidence. In the course of her evidence-in-chief, she gave answers which led the prosecution to apply to treat her as a hostile witness. The judge acceded to this application and Mrs. Pitt was then cross-examined on the witness statement she had made for the purpose of the proceedings. The Appellant did not give evidence but he called his father as a witness that the little boy was insanely jealous of the little girl. The nature of the defence on Count 2 was that the injuries were caused by the little boy and not by the Appellant who was asleep when the injuries were caused. A number of points were raised in the grounds of appeal. The only matter which has troubled us is whether it was right to treat Mrs. Pitt, who was not a compellable witness, as hostile. We will first dispose of the other matters.
It is asserted that the judge was wrong to reject an application that the two counts on the indictment should be severed. The judge clearly had a discretion in the matter and in view of the similarity of the facts alleged in the two counts, we cannot say that he exercised his discretion wrongly. In view of the fact that the jury acquitted on Count 1, it is clear that there was no prejudice to the defence.
Then it is asserted that the judge was wrong in rejecting the defence's submission that there was no case to answer on Count 1, so that the jury in considering Count 2 might still have in mind the evidence on Count 1. Again in view of the similarity of the facts we think the judge was right not to withdraw Count 1 from the jury. There was evidence on which they might have committed on Count 1, but they in fact acquitted.
We will now deal with Mrs. Pitt's evidence. Paragraphs 2 and 3 of the grounds of appeal read: (2) That the judge erred by allowing prosecution leave to treat the defendant's wife as hostile when she was merely unfavourable to the prosecution; and (3) By allowing her to be treated as hostile when she was a competent but not compellable witness." The single judge, when giving leave, approached the problem from a slightly different angle. He said: "Ground 3 is the one which in my view is arguable - I would re-phrase it - 'that since the wife was a competent but not a compellable witness she should have been informed of this before she took the oath and asked whether she was willing to give evidence.'"
The question raised is one of general importance and we shall deal with it on a broad basis. As a result of the decisions in R. v. Leach (1912) A.C. 305 and Hoskyn v. Commissioner of Police for the Metropolis (1978) 2 All E.R. 136, it is now clear that a wife is a competent, but not compellable, witness in proceedings against her husband. The choice, whether to give evidence or not, is hers. She does not lose that choice because she makes a witness statement or gives evidence at the committal proceedings. She retains the right of refusal up to the point when, with full knowledge of that right, she takes the oath in the witness box. We refer to the speeches of Lord Willberforce and Lord Salmon in Hoskyn. Lord Wilberforce, at page 138, said: "On the other hand, cases must have occurred where, after a charge has been made and during the period before trial, a wife, in the interests of her marriage, has second thoughts and when it comes to the point does not wish to give evidence against her husband and will only do so under compulsion." Lord Salmon, at page 149, said: "In many such cases, the wife is not a reluctant or unwilling witness; she may indeed sometimes be an enthusiastic witness against her husband. On the other hand, there must also be many cases when a wife who loved her husband completely forgave him, had no fear of further violence, and wished the marriage, to continue and the pending prosecution to fail. It seems to me altogether inconsistent with the common law's attitude towards marriage that it should compel such a wife to give evidence against her husband and thereby probably destroy the marriage."
Up to the point where she goes into the witness box, the wife has a choice: she may refuse to give evidence or waive her right of refusal. The waiver is effective only if made with full knowledge of her right to refuse. If she waives her right of refusal, she becomes an ordinary witness. She is by analogy in the same position as a witness who waives privilege, which would entitle him to refuse to answer questions on a certain topic.
In our view, in these circumstances, once the wife has started upon her evidence, she must complete it. It is not open to her to retreat behind the barrier of non-compellability if she is asked questions that she does not wish to answer. Justice should not allow her to give evidence which might assist, or injure, her husband and then to escape from normal investigation.
It follows that if the nature of...
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