Terence William Tregear
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 17 February 1967 |
| Judgment citation (vLex) | [1967] EWCA Crim J0217-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2898/66 |
| Date | 17 February 1967 |
[1967] EWCA Crim J0217-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Davies
Mr. Justice Fenton Atkinson
and
Mr. Justice Cantley
No. 2898/66
MR. D. WHEATLEY appeared as Counsel for the Appellant.
MR. M. WORSLEY appeared as Counsel for the Crown.
This is an appeal by leave of the single Judge against a conviction and sentence at the Central Criminal Court in September of last year before Judge Clarke on two counts, one of riot and the other of wounding with intent to do grievous bodily harm. The appellant was sentenced to two years consecutive on each count.
The facts of the case to which I do not need to advert in any great detail are these. On the 23rd May two men called Chown and Jarman were near a club called Smith's Club in Rushey Green when they saw another man apparently tampering with motor cars including one car which belonged to Chown. They went up to him and pulled him about in some sort of way which does not really to any extent matter; and they threatened to take him to the police station, it being suggested that they were pretending to be police officers. On the following morning a telephone call was received at the Lewisham Police Station from a man who gave his name as Terry; and the policeman who took the call thought it might possibly be the voice of the appellant. Whoever it was at the end of the telephone said that he had been pulled up at Rushey Green the previous evening by two people who said they were police-men, and he wanted to know whether in fact there were police-men at that place at that time.
On the evening of the 24th May Chown and Jarman were at a house at 12 Lanier Road, Lewisham, with a number of people, including a Mr. and Mrs. Drew, a Mr. and Mrs. Hampsheir and a Mr. Orgies, watching television. There came a knock on the door, and a man appeared and then went away. He was appa-rently seen at his first visit both by Jarman and Chown. Chown and Jarman thought it was the man they had accosted the previous evening; and, in some trepidation for his motor car, Chown with Drew went and drove it away a short distance to safety. Shortly afterwards two carloads of men arrived and attacked the occupants of the house, including Jarman and Hampsheir, who was quite severely injured. At about 5 o'clock in the morning of the 28th May a policeman went to the appellant's house and told him that he was making enquiries into the serious assault at 12 Lanier Road, And according to the policeman the appellant said "It's down to me then".
It is right, I think, that I should refer to the police evidence as to the oral statements made by the appel-lant; for in the event that really was the only evidence against him at his trial. He was taken to the police station and the Detective Sergeant said to him: "Mr. Roots has told me that he has cautioned you and that you have admitted being at 12, Lanier Road the other night when a man was seriously assaulted". And according to the police the appellant replied: "Yes. I've told him it's down to me". The sergeant said: "You may not know this, but the man who is in the Brook Hospital with a fractured skull was only visiting 12, Lanier Road. Why was he sorted out by you and others in this violent attack?" The appellant is alleged to have said: "You know what it's all down to, Sarge. Then two giving me a pull and saying they were law men. I found out where this fellow's car was. I took some blokes up there, right. We got in. There was a fight inside and outside". The sergeant then said: "One man in the house named Jarman says you hit him with a chair"; and the appellant said: "Right. He was one of them I wanted squared up". The sergeant: "Yes, I can understand that to some extent, but the people who were injured are in fact inno-cent parties who got badly beaten up. One finished with his skull fractured. The other was hit with bricks on the hands and hit over the head with what he thinks was a guitar. Why did this happen to them? They had done nothing to you?" And the appellant is alleged to have replied: "As I've said, there was a fight inside and outside. Everybody went potty. It's down to me. I took them up there. So that's it. I can't be a grass, so I'll have to do the bird". The sergeant said: "The man with a fractured skull was hit with a brick once or more. Who did that?". And the appellant is alleged to have replied: "It could have been any of us. By the way, I'm not putting anything in writing". He was told he would be charged; he was cautioned, and he said: "O.K. Down to me. How do you think it will go?"
That obviously is an extremely formidable case on the facts. If the jury accepted the police evidence about those oral statements, there could be only one result. But it has been submitted forcefully by Mr. Wheatley on behalf of the appellant that there was a serious error in the conduct of the trial.
What is relied upon is this. These two men, Jarman and Chown, made statements to the police and were called as witnesses for the Prosecution before the Magistrates. They turned out to be very unsatisfactory witnesses, and one of them was permitted by the committing Court to be treated as hostile. They were very unsatisfactory and unreliable witnesses because it was thought that they would identify the appellant as being the man whom they had accosted on the evening of the 23rd and who had come to Lanier Road on the evening of the 24th but they were going back on that. So when it came to the Old Bailey, Mr. Worsley intimated to the learned Judge that he did not propose to call either of then, because they were not witnesses whom the Prosecution could possibly put forward as truthful witnesses. An argument then took place, with Mr. Wheatley for the appellant contending strenuously that the Crown were bound to call these two witnesses. No doubt Mr. Wheatley had a good idea what they were likely to say when they went into the witness box. Mr. Worsley on the other hand stated, for the reasons I have indicated, that he did not propose to call the witnesses. The learned Judge heard the arguments on either side and came to the conclusion, in his discretion, that Mr. Worsley was perfectly entitled to take the course proposed by him.
We have been referred to the case of Oliva, reported in 49 C.A.R. page 298, and there has been read to us a substantial quotation from pages 309 and 310. For the purposes of this judgment it is unnecessary to read, any more than a short passage on page 310, where Lord Parker, Chief Justice, said: "This is a case where the prosecution were abundantly entitled to form the view that, to say the very least, these two witnesses were wholly unreliable and that the interest of justice would not be furthered by calling such witnesses. That is sufficient to dispose of perhaps the most important point in this appeal". So far as concerns the point with which I an presently dealing (which is not the most important point in this appeal) that applies in every respect to the present case. We are of opinion that the learned Judge was perfectly right in assenting to the course proposed by Mr. Worsley and that Mr. Worsley was right in taking that course.
The other ground of appeal also concerns these two men, Chown and Jarman. The Prosecution having refused to call them, Mr. Wheatley for the Defence, having called his client, called Chora. To the surprise of no-one Chown, who had formerly said that Tregear was the man whom...
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...in a recent case before another Court of the Criminal Division of the Court of Appeal as recently as the 17th February, the case of Terence William Tregear, the Court held that in the particular circumstances of that case they ought not to treat themselves as bound by that general Rule of P......
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R. v. Finta (I.), (1994) 165 N.R. 1 (SCC)
...185]. R. v. Black (C.V.) (1990), 96 N.S.R.(2d) 124; 253 A.P.R. 124; 55 C.C.C.(3d) 421 (C.A.), refd to. [para. 185]. R. v. Tregear, [1967] 2 Q.B. 574; [1967] 1 All E.R. 989 (C.A.), refd to. [para. United States v. Lutwak (1952), 195 F.2d 748 (7th Cir.), affd. 344 U.S. 604, rehearing denied (......
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R. v. Finta (I.), (1994) 70 O.A.C. 241 (SCC)
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