R v Tompkins
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD |
| Judgment Date | 02 December 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J1202-1 |
| Docket Number | No. 3743/A/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 December 1977 |
[1977] EWCA Crim J1202-1
Lord Justice Ormrod
Mr. Justice Thompson
and
Mr. Justice Jupp
No. 3743/A/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. C. CUNNINGHAM appeared on behalf of the Appellant.
MR. R. WATERHOUSE, Q.C. and MR. FRICKER appeared on behalf of the Crown.
This appeal against conviction, by leave of the single Judge, arises out of an unfortunate and almost unprecedented incident which occurred during the appellant's cross-examination.
He was indicted on two counts alleging burglary and handling and was eventually convicted on the handling count and sentenced to twenty one months' imprisonment. The goods in question included a stereo-unit and speakers alleged to belong to a Mr. Evans. Possession was admitted of a stereo-unit corresponding generally to the article stolen from Mr. Evans but the appellant denied that it was in fact the stolen one. The precise identification of the stereo-unit was, therefore, of crucial importance at the trial.
Mr. Evans positively identified the stereo-unit by certain specific characteristics, e.g., by the way a connecting wire had been cut and by a loose knob or button on it. He also specifically identified other articles found in possession of the appellant. So far as the stereo-unit was concerned, the looseness of the button became the central issue in the case.
In the witness box Mr. Evans demonstrated how easily this button came off. In examination-in-chief the appellant was asked to demonstrate his contention that there was nothing wrong with the button and that it was not loose. He appeared to be unable to remove the button. The Court adjourned for the day. The next morning he was invited in cross-examination to remove the button. He again appeared to be unable to do so. At that point counsel for the prosecution suspected that the exhibit had been tampered with in some way. He cross-examined the appellant as to whether the button ever had been loose while the stereo – unit was in his possession. The appellant was positive that it had never been loose.
At that point, counsel for the prosecution decided to use a document which had been handed to him on his arrival that morning at Court by his instructing solicitor. This document, which is the basis of the present appeal, was a note, one of many as it afterwards transpired, which the appellant had passed to his counsel during the trial. It had been picked up in Court by a legal assistant in the Chief Prosecuting Solicitor's office who was instructing counsel for the prosecution. This note clearly indicated that the button had been loose when the stereo-unit was in the possession of the appellant and that he had applied Airfix glue to it.
During his cross-examination counsel pressed the appellant strongly on this question of the loose knob but received repeated denials. He then handed the note to the appellant and said "I want you to look at this piece of paper. Just look at it and think carefully before you answer the next question." No indication was given to the jury of the nature or contents of the document, although they must have realised that it was being used in some way to confute him. Counsel for the defence immediately asked to see the document. One further question was put: "Do you still stick to the answer you gave?". Before the appellant could answer, counsel for the defence asked for the jury to retire. A discussion took place in the absence of the jury, which concluded with the Recorder expressing the view that the cross-examination should proceed "without any direct mention of that particular piece of paper". Thereafter the appellant conceded that one of the buttons might have been loose but not so loose that it "popped off". One question only was put from the contents of the note. Counsel asked "Is it right you took some steps to try and fasten it in some way by using 'Air-fix'?" to which the answer was "I put a dab of 'Air-fix' on it."
A number of affidavits were filed in this...
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