Status: ¬†Positive or Neutral Judicial Treatment¬†
*111¬† R. v Takis Prefasdaniel Pryce
Court of Appeal
11 November 1986
(1988) 86 Cr. App. R. 111
(The Lord Chief Justice, Mr. Justice Taylorand Mr. Justice Rose):
November 11, 1986
Evidence‚ÄĒWitness‚ÄĒHostile Witness‚ÄĒWitness Giving Statement Inconsistent With Previous Oral Statement‚ÄĒWhether to be Treated as Hostile
Where a prosecution witness gave evidence inconsistent with a previous oral statement, applications to treat him as a hostile witness, and subsequently to call evidence to prove his previous inconsistent statement, were rightly granted.
The appellant Prefas and one Pryce were charged with arson. Amongst the evidence found at the scene of the fire were three containers which had held petrol. Those containers were traced to one K, who ran a fish and chip shop. When interviewed by the police K made two statements. In the first he said he had given two of the containers to a Greek Cypriot called Chris some time before the fire. The appellant was a Greek Cypriot who was known to friends as Chris. In the second statement K said he had been unable to identify the appellant as Chris on an identification parade. Shortly before the trial K told a police officer and a legal officer that he had in fact recognised the appellant on the parade as being Chris but did not say so because of fear for his family’s safety. He made no written statement to that effect. At the end of K’s evidence-in-chief the prosecution applied to the judge to treat K as hostile on the basis that he was deliberately refraining from telling the truth, namely, that Chris was the appellant. The judge allowed the application but the cross-examination of K achieved nothing. A further application was later made to call the police officer and the legal officer to prove the inconsistent oral statement made by K, which application was granted and the appellant and Pryce were convicted. On appeal by the appellant Prefas on the ground that the judge erred (1) in allowing K to be treated as hostile; and (2) in allowing the evidence about the inconsistent oral statement as, even if it was admissible, its prejudicial effect outweighed its probative value.
(1) the foundation for treating K as hostile was plainly there because all the ingredients of the common law rules on unfavourable and hostile witnesses were present (as set out in Article 147 of Stephen’s Digest of the Law of Evidence ); the fact that the statement was oral rather than written, although making the task of the cross-examiner more difficult, did not affect the principle;¬†
(2) the judge’s exercise of his discretion was correct in granting the second application to call evidence to prove the inconsistent statement of K. Further, his directions to the jury were right, the evidence against the appellant was overwhelming; thus the appeal would be dismissed.
Observations on the advisability for trial judges to invite counsel to address them upon the propriety of imposing a criminal bankruptcy order before such an order is made.
[For hostile witnesses, see Archbold (42nd ed.), paras. 4-305, 306. For cross-examination upon former inconsistent statements, see, ibid, paras. 4-318et seq.]
Appeal against conviction and sentence.¬†
On October 22, 1985 in the Crown Court at Kingston-upon-Thames (Judge Figgis) the appellants were convicted, Prefas by a majority of 10 to 2, Pryce unanimously, of arson contrary to section 1(1) and (3) of the Criminal Damage Act 1971. Prefas was sentenced to six years imprisonment and Pryce to four years’ imprisonment. In addition criminal bankruptcy orders were made against each in the sum of ¬£797,162. The facts appear in the judgment.
The main ground of appeal was against conviction by Prefas that the trial judge erred in law in allowing Mr. Koureas to be treated as a hostile witness, in that no animus had been shown against the prosecution, and Mr. Koureas had not made a statement capable of proof or legally receivable inconsistent with any other statement. Both Prefas and Pryce appealed against sentence in relation to the criminal bankruptcy orders made against them.
- Howard Shaw (assigned by the Registrar of Criminal Appeals) for the appellants.¬†
Richard Germain for the Crown.
THE LORD CHIEF JUSTICE:
On October 22, 1985 in the Crown Court at Kingston-upon-Thames, the two appellants, Takis Prefas and Daniel Pryce, were each convicted of arson: Prefas by a majority of 10 to 2 and Pryce unanimously. Prefas was as a result sentenced to six years’ imprisonment and Pryce to four years’ imprisonment. Criminal Bankruptcy Orders were made against each of them in the sum of ¬£797,000 odd.
Prefas now appeals against conviction and sentence by leave of the single judge, and Pryce appeals against sentence only.
The facts of the case were these. In the early hours of the morning of December 28, 1984 the automatic alarm at the premises of India Imports Ltd. in Commerce Road, Brentford, was activated. Police were alerted. They attended the scene and discovered that the premises were on fire. The blaze was intense and it required the services of no less than 40 firemen with six fire appliances to endeavour to fight the conflagration. The building was a single-storey warehouse and office. The contents were largely clothing and both the building and the contents were severely damaged by the fire.
The police officers who attended the scene observed a Cortina car parked at a road junction in the vicinity of the burning building. There were two occupants of the vehicle and they were looking back towards the fire. They thought they observed that the driver was of dark appearance with a moustache, and they *113¬† thought in his mid-forties. Those policemen saw the car drive away, but broadcast a message over their radio, with the result that the Cortina was stopped by another police officer near a roundabout shortly afterwards. Out of the driver’s seat climbed Pryce.
The officer asked him where he had been and he said that he and what he called his father-in-law, who turned out to be Prefas, the other person in the motor car, had come from Hammersmith. The first thing that the police officer noticed about the car was that there was a strong smell of petrol. The smell was present in the boot of the vehicle, and in that boot was a can of petrol and a pair of heavy bolt cutters. Pryce said that they had run out of petrol earlier.
Both were arrested. They were taken to the police station separately in different vehicles, Pryce in a police van. He said en route that he was short of money and had been offered ¬£10,000 to set light to the building of the company.
There were various items found at the scene. It was discovered that some chain links at the factory had been cut, and it was possible to ascertain by microscopic examination that the implement which had cut the chain was in fact the bolt cutters which had been found in the boot of the Cortina. A dented can which had contained petrol was also found there, and on that can was found the print of a shoe. When that print was compared with a shoe which was shown to have belonged to Prefas, it was possible to say that it was almost certainly a print made by that shoe.
Both of the appellants were wearing coats, and fragments of glass were found on each of those coats. Likewise traces of petrol were found on their clothing.
The scientific evidence was plain that the building had been deliberately set on fire. Petrol had been sprinkled inside the building and outside the building. Amongst other things the investigating officers saw that tape had been stretched from window to window, that tape being impregnated with petrol, apparently in a successful attempt to spread the fire as quickly as possible.
The two men were interviewed, one need hardly say. Pryce was questioned by two officers, and immediately admitted setting fire to the premises with petrol which he said he had poured in through the window which he had earlier broken. At a second interview Pryce made further admissions. He said he wanted the money which he was being offered in order to buy a house. He said that he had got the petrol in three 5-gallon drums at various garages. Prefas on the other hand consistently denied that he had anything to do with the fire at all. But surprisingly, in the light of the evidence which he gave later before the jury, he did not say to the police that he had been elsewhere at the time when the fire was started.
Now Mr. Shaw, on behalf of the appellant Prefas so far as conviction is concerned, makes two complaints, both of which are connected with the evidence of a Mr. Koureas.
The way that Mr. Koureas came into the story was this. Eventually three containers which had held petrol were discovered in and around the scene. Two were tins and one was plastic. They had all, at earlier stages in their life, contained groundnut oil. It was possible by examining the tins to see where they had come from, and they had apparently come from two different suppliers. The only common buyer from those two suppliers, at any rate in this part of London, was Mr. Koureas, who ran a fish and chip shop. Consequently he was interviewed and he made two statements to the police.¬†
He said that he had given to a Greek-Cypriot customer‚ÄĒthis appellant Prefas is a Greek-Cypriot‚ÄĒof his called Chris‚ÄĒthis appellant is known at least to his immediate friends as Chris‚ÄĒon August 2 two or three plastic containers. *114¬† Koureas made a subsequent statement, which was perfectly correct, saying that he had attended an identification parade. He further added in that statement that at the identification parade he was unable to identify the appellant who stood on the parade as being the man Chris to whom the containers had been supplied.
There stood the evidence until very shortly before the trial, when Koureas mentioned to a police officer that in fact he had recognised the appellant on the identification parade as being Chris, but had refrained from saying so because he was frightened for his own safety and the safety of his family and so on. He made no written statement to that effect. There was the oral evidence which was capable of being given by Detective Constable Oldman and a lady from the Metropolitan Police Solicitor’s Department called Mrs. Bullen.
What happened was this. Although it is not altogether clear from the transcript as to the sequence of events, it is sufficient to say that intimation was given by the prosecution to the defence that there was likely to be an application to treat Mr. Koureas as hostile and to cross-examine him about the alleged statement to Oldman and Mrs. Bullen. In due course, at the completion of the evidence given by Koureas in chief, an application was made by Mr. Germain to the judge to treat the witness as hostile on the basis that he was deliberately refraining from telling the truth, namely that Chris, to whom he had supplied the cans, was in fact the man standing on the identification parade, namely the defendant Prefas. The judge allowed that course to be taken.
The first ground of appeal put forward by Mr. Shaw is that he was wrong so to do. We have been referred helpfully to Stephen’s Digest on the Law of Evidence , Article 147, in which the common law rules are set out. It may be helpful if I just read them:¬†
‚Äú Unfavourable and Hostile Witnesses: If a witness called by a party to prove a particular fact in issue or relevant to the issue fails to prove such fact or proves an opposite fact the party calling him may contradict him by calling other evidence, and is not thereby precluded from relying on those parts of such witness’s evidence as he does not contradict.
If a witness appears to the judge to be hostile to the party calling him, that is to say, not desirous of telling the truth to the Court at the instance of the party calling him, the judge may in his discretion permit his examination by such party to be conducted in the manner of a cross-examination to the extent to which the judge considers necessary for the purpose of doing justice.
Such a witness may by leave of the judge be cross-examined as to‚ÄĒ(1) facts in issue or relevant or deemed to be relevant to the issue; (2) matters affecting his accuracy, veracity, or credibility in the particular circumstances of the case; and as to (3) whether he has made any former statement, oral or written, relative to the subject-matter of the proceeding and inconsistent with his present testimony ‚Ä¶
In the case of a witness who is treated as hostile, proof of former statement, oral or written, made by him inconsistent with his present testimony may by leave of the judge be given in accordance with Articles 144 and 145.‚ÄĚ
It is plain that the foundation for treating the witness as hostile was there, because all the ingredients in that Article of Stephen’s Digest were present. The fact that the statement was oral rather than written, although making the task of the cross-examiner more difficult, does not seem to this Court to affect the *115¬† principle. By saying he did not recognise Chris the witness showed himself to be sufficiently hostile to bring into operation the procedures mentioned.
In the upshot the cross-examination by Mr. Germain, although bravely persisted in, really got nowhere at all. Application was then made to prove the inconsistent oral statement, and that application was granted. The two witnesses, Detective Constable Oldman and Mrs. Bullen, were duly called to prove what they said the witness in their hearing had stated.
Once again complaint is made that the judge should not have allowed that evidence to be given, and, even if it was permissible, he should in his discretion, which he plainly had, have refused to allow the evidence on the basis that the prejudice caused by calling that evidence outweighed the probative value.
In the judgment of this Court the judge was well within the area of his proper discretion to grant both these applications. The fact that some judges might have refused the applications is neither here nor there. We do not think the judge can be faulted. For those reasons that decision by the judge to allow the applications was correct.
The only remaining question is whether the judge dealt sufficiently with the rather complicated situation which then arose in his directions to the jury. Those directions are as follows:¬†
‚Äú‚Ä¶ it is only evidence given from the witness box on oath on which you can rely. What he said, finally, in evidence was: ‚ÄėI am not one hundred per cent. sure whether he was there or not‚Äô‚ÄĒthat is, the man Chris, who had bought the container.¬†
All that means, members of the jury, is, that you may have some doubt about Mr. Koureas’s non-identification, but it is no evidence, no evidence at all‚ÄĒindeed, he said precisely the contrary in court that he [did not] recognise one hundred per cent. anybody. Or, even more so, it is no evidence against Mr. Prefas. What you must not do is travel this road: you suspect his non-identification, therefore he must be wrong; therefore he must have identified somebody. Even worse, you must not draw an inference from that as to who it might have been. You are entitled to go no further than this first step: ‚ÄėWe suspect his non-identification.‚Äô So, you are left, in effect, with similar drums. If you believe Mr. Koureas as to this, having sold to some Greek Cypriot known as ‚ÄėChris,‚Äô whom he describes (I gave you a description) as a chap with long hair and a beard.‚ÄĚ
It seems once again to us that the judge, with those words, made it perfectly plain to the jury the way in which they should approach what had been said by Koureas, and, perhaps more importantly, what had not been said by Koureas.
In our view there is no proper criticism that can be made of the judge on the two bases which Mr. Shaw has put forward.¬†
One should perhaps add this: in any event the evidence against Prefas, quite apart from what Koureas said, or did not say, was, in the view of this Court, overwhelming. There is no need for us to relate the details of it, and there is no need for us in the circumstances to set out what it was that Prefas said to the jury, which to us appears to have been incredible.
Consequently, so far as conviction is concerned, this appeal is dismissed.
We therefore now turn to the question of sentence. The only ground upon which the sentence is criticised is the question of the criminal bankruptcy orders.
It is perfectly true that the learned judge in sentencing, without any prior warning to counsel that it was his intention so to do, imposed the criminal *116¬† bankruptcy order. The result was of course that counsel were not given the opportunity to address the Judge on the propriety of imposing such an order.
Mr. Shaw submits that had he been given the opportunity of making those submissions, he would have been in a position to urge the Judge that the chances of any money being extracted from either of these two appellants was remote in the extreme. Neither of them had any wealth and apparently, so far as one of them was concerned, the only asset was the matrimonial home held in joint ownership with the wife. Mr. Shaw added that it was very unlikely that anyone would seek to enforce the criminal bankruptcy order.
But we have to approach the matter on the basis of the law. The fact is that by section 40 of the Powers of Criminal Courts Act 1973, no appeal shall lie against the making of a Criminal Bankruptcy Order. Mr. Shaw endeavours to escape from the difficulty provided by that section by saying that in the circumstances of this case the order was a nullity, because the Judge had not given counsel an opportunity of arguing the matter. Suffice it to say that that omission by the judge does not come within a distance of making the order a nullity. It was a perfectly valid order. As there is no appeal against such an order, this appeal against sentence must be dismissed.¬†
We would like to add however that plainly as a matter of common courtesy it would be advisable in future if judges were to invite counsel to address them upon the propriety of imposing a Criminal Bankruptcy Order before the judge makes such an order.
As I say, the appeal against sentence, like that against conviction, must be dismissed.
- Solicitors: Chief Prosecuting Solicitor, Surrey Constabulary, Guildford, for the Crown.
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