R v Sullivan (Colin Thomas)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON |
| Judgment Date | 01 June 1970 |
| Judgment citation (vLex) | [1970] EWCA Crim J0601-2 |
| Docket Number | No. 5343/69 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 June 1970 |
[1970] EWCA Crim J0601-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Salmon
Lord Justice Phillimore
and
Mr. Justice Nield
No. 5343/69
MR. A. SCRIVENER appeared on behalf of the Appellant.
MR. J.G. LEACH appeared on behalf of the Crown.
This Appellant was tried at the Essex Quarter Sessions on the 1st July of last year for dangerous driving. He desired to call certain witnesses to prove an alibi. The learned Chairman refused permission for the defence to call those witnesses. The Appellant was duly convicted. He now appeals against his conviction on the ground that the Chairman wrongfully refused permission to call the witnesses to whom I have referred.
The offence of dangerous driving, according to the prosecution, was committed on the 5th January of 1969. It was a somewhat strange case. The Appellant did not challenge any of the evidence as to the dangerous way in which a car was driven on that day. His defence was that he was not the man driving the car, and indeed that it was not his car that was being driven dangerously. He relied, or sought to rely, on evidence to show that at the time and place in question he was elsewhere than at the place where the offence occurred.
He received the notice of an intended prosecution on the 10th January, 1969, and he was seen by the Police on the 21st January. On the 13th March the case came before the Magistrates. The defendant was not represented and the case was adjourned. It was adjourned until the 10th April. When it then came before the Magistrates, the defendant was again not represented, and was committed for trial. At the hearing on the 10th April he was given the prescribed warning to the effect that he would not be permitted to give evidence of an alibi, or to call witnesses in support of an alibi at the trial, unless he first gave particulars of the alibi and the witnesses. He was told that he could give the particulars then and there, or he might give them to the solicitor for the prosecution not later than seven days from the end of the committal proceedings.
The provisions of the Criminal Justice Act, 1967, Section 11 read as follows:- Subsection (1): "on a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless before the end of the prescribed period, he gives notice of particulars of the alibi", and the prescribed period is defined by Subsection (8) of Section 11 as meaning "the period of seven days from the end of the proceedings before the examining justices".
Subsection (2): "Without prejudice to the foregoing subsection, on any such trial the defendant shall not without the leave of the court call any other person to give such evidence unless- (a) the notice under that subsection includes the name and address of the witness or, if the name and address is not known to the defendant at the time he gives the notice, any information in his possession which might be of material assistance in finding the witness; (b) if the name or the address is not included in that notice, the court is satisfied that the defendant, before giving the notice, took and thereafter continued to take all reasonable steps to secure that the name or address would be ascertained;", I think I can omit (c), and (d) "if the defendant is notified by or on behalf of the prosecutor that the witness has not been traced by the name or at the address given, he forthwith gives notice of any such information which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it".
Subsection (3): "The Court shall not refuse leave under this section if it appears to the court that the defendant was not informed in accordance with the rules under section 15 of the Justices of the Peace Act 1949 (rules of procedure for magistrates' courts) of the requirements of this section".
I pause here to say that this Court does not consider Subsection (3) is material in this case because there was nothing to make it appear to the Court that the defendant had not been informed in accordance with the rules. Indeed, there was a certificate by the Justices' Clerk stating that the defendant had been informed in accordance with the rules. There may, of course, be cases where the defendant raises the issue that he has not been informed and then it may be necessary to hear evidence on one side or another.
Subsection (5) of Section 11: "Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant".
This defendant certainly did not give any notice in accordance with the requirements of Section 11 on the 10th April, nor within seven days of that date. As I have said, he was not then legally represented. He obtained a legal aid certificate for his defence on the 9th June. On that date, his solicitors wrote to the prosecuting solicitor giving the name and addresses of two witnesses whom they desired to call to prove an alibi, and the name but not the address of a third witness whom they also desired to call for the same purpose. Apparently, this was all the information that was in the possession of the defendant's solicitors on that day. The information did not comply with the Section because it did not state the particulars of the alibi, and as far as the third witness was concerned, it did not state his address.
However, on the 11th June - that is two days later - the defendant's solicitors again wrote to the prosecuting solicitor in the following terms: "Will you please take this letter as formal notice that it is the intention of the Defendant to call the following alibi witnesses:- Mr. Anthony Leonard Robinson of 2 Rowan Way, Chadwell Heath, Essex, who will give evidence that he arrived at the Defendant's place of business during the afternoon of the 5th January and remained there in the company of the Defendant until 5.30 p.m. that day. Mr. Terrence John Frederick Sheppard, 14 Naseby Road, Dagenham, will say that he is a partner of the Defendant's and that on Sunday the 5th January he and the Defendant were at work at the Beckton Tyre Centre, East Ham, from 9 a.m. until 5.30 p.m. and the Defendant did not leave the premises during that day. Mr. Ronald Fleming, 43 Leinster Terrace, W.2. who will say...
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...convicted if the irregularity had not taken place and the alibi witnesses had turned up to testify. (per Mitchell, J.A. [Ag.]). R v Colin Thomas Sullivan [1970] 2 All E.R. 681 distinguished. There is no evidence in the transcript which showed that the first appellant was informed about t......
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