R v Scott
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 27 January 1984 |
| Judgment citation (vLex) | [1984] EWCA Crim J0127-12 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4452/C2/82 |
| Date | 27 January 1984 |
[1984] EWCA Crim J0127-12
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Drake
and
Mr. Justice Ewbank
No. 4452/C2/82
MISS C. ACKNER appeared on behalf of the Appellant.
MR. D. GEARY appeared on behalf of the Crown.
On 11th August, 1982, in the Crown Court at Aylesbury after a trial before His Honour Judge Verney, this Appellant was convicted and sentenced as follows. On Count 1 which charged him with theft he was fined £260. On Count 2 for attempting to obtain property by deception there was no separate penalty. He was ordered to contribute £140 towards the prosecution's costs. He appeals against conviction and sentence by leave of the single judge who granted legal aid, counsel only.
The prosecution alleged that on the morning of 4th February, 1982, the Appellant removed a pair of curtains priced £26 from the home furnishing department at Marks and Spencers' store in High Wycombe. He took them straight to the customer refund desk pretending that he had bought them. When he was refused an immediate refund he tried to take the curtains away. The Appellant claimed that he had bought the curtains the previous evening and was therefore entitled to a refund.
It is necessary, having regard to the main ground of appeal in this case, to examine the evidence in some detail. The home furnishing department supervisor's statement which was read at the trial was to this effect. She said that this pair of curtains had been an odd pair, not part of the branch's regular stock. They were placed on top of a pile of curtains for sale. She concluded her statement: "I feel sure that these curtains were still on display that Thursday morning", that was the day of the alleged offence. Two other shop assistants said that they did not remember selling the curtains to the Appellant on the previous evening as he claimed and there was no relevant entry in the till rolls of the section of the store which dealt with home furnishings.
It was the practice of Marks and Spencers to give receipts to customers who purchased goods over a certain value; but when the Appellant attempted to collect his refund he did not have a receipt. According to the prosecution's witnesses, he said that he did not know where the receipt was and on another occasion that his wife had it. The Appellant gave evidence and he told the court that he had bought the curtains the previous evening. He said they were the wrong size. He took them hack to the branch in High Wycombe, not his local branch in the Beading area. He said he took them back to High Wycombe, because he thought he had to take them there. He said he took them back in order to get a refund, but he could not find his receipt. He denied stealing the curtains from Marks and Spencers and he said he paid cash for them the previous evening.
It was not until he went into the witness box that Marks and Spencers had any idea where he said he had paid for the curtains. They had assumed before they heard his evidence that he would have paid for them in the section of the store which dealt with home furnishings. When he was in the witness box for the first time he said that he had not paid for the curtains in that section of the store but at a till near the entrance to the store. By this time Marks and Spencers had looked at all the till rolls for 3rd February, 1982. They discovered, on looking at them that there was no entry showing that £26 had been paid in respect of a purchase. That fact being brought to the attention of prosecuting counsel at the end of the defendant's case, he asked the judge for leave to give evidence in rebuttal about what was on the till rolls. Miss Ackner, who appeared on behalf of the defendant, at once objected. In the course of her objection she said that this was not evidence which had arisen ex improviso at all. She went on to say: "In my respectful submission, it was not evidence that was either marginal or minimal or doubtful. It was evidence that has throughout been relevant and could have been adduced at the appropriate time."
Thereupon the learned judge said this: "We think that this evidence ought to be given because the first mention of Wednesday as the day of purchase was yesterday in the evidence of the defendant." There was more discussion, Miss Ackner asked for an adjournment, and the learned judge refused that, but he did give Miss Ackner an opportunity of looking at the till rolls before she had to cross-examine. Miss Ackner took advantage, as one would have expected her to do, of that opportunity and she told us that on looking at the till rolls she could find no entry for a sum of £26.
In this court Miss Ackner has invited our attention to a number of authorities dealing with the question as to when and in what circumstances the prosecution can call evidence in rebuttal. She has accepted that the line of authority shows that the judge has a discretion. But she submitted, and rightly submitted, that the discretion is not unlimited. It is confined to cases where the prosecution could not reasonably have been expected to produce the evidence as part of their case. Unless there is some reason for the prosecution not producing the evidence at the right time, in general the judge should reject the evidence. The expression "evidence which arises ex improviso" has a long history. It dates back to a judgment of Tindal C.J. in the 1830's. In recent years the expression has been commented upon by this court in a number of cases. It was commented on in R. v. Milliken 53 Cr.App.R. 330 and in R. v. Doran 56 Cr.App.R. 429. The case most in...
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