R v Sekhon (Malkiat Singh)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF |
| Judgment Date | 19 December 1986 |
| Neutral Citation | [1986] EWCA Crim J1219-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6401/C/85 |
| Date | 19 December 1986 |
[1986] EWCA Crim J1219-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Woolf
Mr. Justice Tucker
and
Mr. Justice Potts
No. 6401/C/85
MR. K. BIRNBAUM appeared on behalf of the Appellant.
MISS S. EDWARDS appeared on behalf of the Crown.
On 4th October 1985 at South Wark Crown Court the appellant was convicted, after a retrial, of being concerned in the making of an offer to supply a controlled drug and was sentenced to imprisonment for a period of four years and six months.
A co-accused, Inder Mohan Singh Grewal, pleaded guilty to an offence of being in possesison of a controlled drug with intent to supply and was also sentenced to four years and six months' imprisonment. A further co-accused, Kuldip Kumar, who was tried with the appellant, Was acquitted.
Mr. Birnbaum, who appears on behalf of the appellant in this Court but did not do so in the court below, and for whose arguments the Court is indebted, submits that the appeal raises a point of general importance in relation to cases where a prosecution arises as a result of observations being conducted by a number of officers into the activities of a defendant. It is frequently the practice where such observations are being undertaken for one officer to keep a log which summarises events, giving the times of the various observations made as a result of what he himself observes and as a result of what is reported to him by other officers engaged in the same activity. The entries made as a result of information supplied by other officers at the first convenient opportunity are verified by those officers signing the entries Which relate to their observations. The point is as to the circumstances, if any, in which it is proper for a log compiled in this way to go before the jury.
In this case the observations had been carried out by seven officers in the vicinity of Grosvenor Hotel at Victoria Station in London. The log was kept by Detective Inspector Lloyd of what he himself observed or what was transmitted to him over the radio of the vehicle in which he was sitting. The log was subsequently verified by the other officers, certain of whom used the log for purposes of making up their notes of the events which occurred.
At the trial the officers gave evidence refreshing their memory in the normal Way of their observations which included evidence that Grewal attempted to sell a package containing heroin to two undercover police officers, which was the offence to which Grewal pleaded guilty. The officers also gave evidence of the movements and activities of the appellant and Kumar, from which the prosecution were inviting the jury to infer that they were acting as the lookouts and the "minder" of Grewal.
When interviewed after being arrested, the appellant denied any involvement in the offence. He admitted that he travelled to Victoria with Kumar and Grewal, but so far as he was concerned that was so that he could meet some girls. Grewal had asked for a lift to Victoria saying he was meeting a friend there and he had shown the appellant where the hotel was in order that they could meet there if necessary. The appellant added that he and Kumar had strolled about for about an hour before going to look for Grewal.
The appellant and Kumar did not give evidence, but counsel on their behalf closely cross-examined the police officers as to their alleged observations, suggested they were untrue and also cross-examined the officers closely as to their notes, and in particular the log which they had used for refreshing their memory. This was particularly true of Detective Inspector Lloyd, who was cross-examined in the minutest detail as to what was contained in the log. As the Recorder said in the course of giving a ruling on a separate matter, the defence was "This is a dishonest prosecution based upon false evidence by corrupt police officers who have falsified records."
Having regard to the manner in which the defence was being conducted, it is not surprising that when an officer. Detective Constable Scorn, gave evidence after Detective Inspector Lloyd had completed his evidence, the jury sent the Recorder a note asking, "Can we see the log? If not why?"
The learned Recorder then heard argument in the absence of the jury and, having done so, came to the conclusion that the log could go before the jury notwithstanding the arguments of the defendants to the contrary, and he explained his reasoning by pointing out that both from the point of view of the prosecution and the defence that the log was the cornerpiece of the prosecution. While the prosecution said it was a contemporaneous record and an honest document, the defence were saying it was a concoction.
The Recorder took the view that first of all by looking at the document it could assist the jury to form a view as to whether or not the log was an honest document made at the time, or a dishonest document concocted later. Secondly it would assist the jury to have the document before them when the Recorder came to sum up as he would have to refer in detail to the evidence of which the log was a record. Thirdly the Recorder was of the opinion that it would be very difficult for the jury to follow the logic of the arguments of both the prosecution and defence counsel without having the log in front of them. Finally he considered that as counsel were jumping backwards and forwards from a time point of view in dealing with different things observed by different officers, it was very difficult for the jury to follow the evidence without having the timetable provided by the log before them. The log was accordingly made an exhibit.
Mr. Birnbaum submits that while the jury could have been allowed to inspect the log, it was quite wrong to make it an exhibit and allow the jury to have it with them when they retired to consider their verdict. Mr. Birnbaum submits that there is a distinction to be drawn between notes used to refresh the memory of a witness which were made by him of matters he observed and a record such as this log.
We agree with him that there is a greater risk of a record containing observations of others being inaccurate and this could be an appropriate subject of comment to a jury. However when, as happened here, the officers have verified the entries on which they wish to rely at the time when the matters dealt with in the entries were fresh in their memory, we cannot see any difference in principle between the two categories of documents in relation to admissibility. If one category is not admissible as a matter of principle, so must the other be inadmissible.
In the absence of binding authority to the contrary, we would be of the view that the position in relation to both categories is reasonably clear:
(1) That they can both be referred to by witnesses to refresh their memory if the usual basis for permitting this to be done is established without the record being put before the jury.
(2) That the documents used by the witness for the purpose of refreshing his memory must be available for inspection by the other parties who can cross-examine on the basis of that document if it is relevant to do so. In the majority of cases the fact that there is such cross-examination will not make the record evidence in the case, nor will it be necessary for a jury to inspect the document, and it will not be appropriate for the record to become an exhibit.
(3) Where however the nature of the cross-examination involves a suggestion that the witness has subsequently made up his evidence, which will usually involve, if not expressly at least by implication, the allegation that the record is concocted, the record may be admissible to rebut this suggestion and, if the nature of the record assists as to this, to show whether or not it is genuine, that is to say whether or not it has the appearance of being a contemporaneous record which has not subsequently-been altered.
(4) Where the record is inconsistent with the witness's evidence, it can be admitted as evidence of this inconsistency.
(5) It is also appropriate for the record to be put before the jury where it is difficult for the jury to follow the cross-examination of the witness who has refreshed his memory, without having the record or, in practice, copies of the records before them.
(6) However, subject to the exception mentioned below, in the cases referred to where the record is permitted to go before the jury, it will not be placed before them as evidence of the truth of the contents of the record, and it will not amount to corroboration of the evidence given by the witness refreshing his memory from the record. It will on the one hand be before them for the more limited purpose of being a "tool" (to use the Word chosen by Miss Edwards in her submissions) to assist the jury to evaluate the truth of the evidence given in the witness box by the witness. Whether in these circumstances it is appropriate to treat the document as an exhibit is of no practical importance. In a case involving a lot of documents, it may be appropriate to give it an exhibit number just to identify the document.
(7) There may be cases where it is also convenient to use the record as an aide memoire as to the witness's evidence where that evidence is long and involved. However care should be exercised in adopting this course in cases where the evidence and therefore the record is bitterly contested, because of the danger that the use of the document for this purpose could result in the jury misunderstanding its status and lead to their wrongly regarding the document as being evidence in itself.
(8)...
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