Francis Fraser, Robert Warren

*160  Francis Fraser, Robert Warren

Court of Criminal Appeal

5 November 1956

(1956) 40 Cr. App. R. 160

 Lord Chief Justice , Mr. Justice Hallett and Mr. Justice Ashworth 

November 5, 1956

Evidence—Hostile Witness—Evidence in Contradiction of Previous Statement Held by Prosecution—Duty of Prosecuting Counsel.

 Where a Crown witness gives evidence on oath in direct contradiction of a previous statement made by him which is *161  in the possession of the prosecution, it is the duty of counsel for the prosecution at once to show the statement to the judge and ask the judge’s leave to cross-examine the witness as hostile. 

Applications for leave to appeal against conviction.

The applicants were convicted at the Central Criminal Court on June 15, 1956, of wounding with intent to do grievous bodily harm and were each sentenced by Donovan J. to seven years’ imprisonment.

The injured man, Comer, who had been the victim of a gang fight, stated on oath that he was unable to identify his attackers and that he was certain that the applicants were not the men. The prosecution had in their possession a statement made by Comer two days after the attack, in which he enumerated to the police the names of seven or eight persons as his attackers, specifying in particular the two applicants and describing the weapons which they had. Counsel for the prosecution did not ask for leave to cross-examine Comer as a hostile witness, but, during the course of the trial, through the cross-examination of a police officer, Donovan J. became aware of the existence of this statement. He then sent for it and cross-examined Comer on it.

  1. Gillis, Q.C. and P.A. Marrinan , for the applicants. 

No counsel appeared for the Crown.

The Lord Chief Justice:

The court has fully considered the matter, and the applications for leave to appeal are refused, but, before parting with the case, the court desires to say one thing of general importance, of which I hope some notice will be taken.

 In this case, as in a recent case of very much the same character and where the same point arose, counsel for the prosecution must have had in his possession a statement by the injured man, who, when he went into the witness-box, gave evidence which was entirely contrary to what he had said in *162  that statement. The case that was put forward by the prosecution was one of what is known as a “gang fight.” We know quite well that very often in such cases the injured man departs from the statement which he has first made in which he has positively identified the persons who attacked him and afterwards says that he cannot identify them. It may be that there is a kind of honour among razor slashers and that they prefer to settle their own differences. What courts have to decide is whether men prosecuted in such circumstances are guilty of the offences with which they are charged, irrespective of whether the injured man is a scoundrel, because the law will not permit razor fights in the streets of London or any other city. 

In this case counsel must have had among his papers—or, if he did not, whoever was responsible for the prosecution should have provided him with it—a statement in which the injured man Comer, two days after the attack on him and when he was in hospital, had enumerated to the police the persons who had attacked him, naming among others the two applicants and saying that one of them, whom he named, had a knife in his hand and cut him with it and that the other had an iron bar in his hand. Among the persons he named, seven or eight in all, he named those two particularly and specified the weapons they had. Then, when he went into the witness-box at the Central Criminal Court, he denied all knowledge of his attackers and even went so far as to say that he was certain that the applicants were not the men. If counsel had in his possession that statement to which I have referred, it was his duty at once to show the statement to the judge and ask the judge’s leave to cross-examine the witness whom he had called as hostile to the prosecution, as of course he was when, after identifying the persons who attacked him and describing what they did, he went into the witness-box and told what appeared to be a pack of lies with regard to identification. It was left to the learned judge to bring that out himself, and the matter came out just as one of those things *163  that fortunately happen in the interests of justice. Counsel for the defence was cross-examining a police officer and asked him whether Mrs. Comer, the wife of the injured man, had not named certain other persons as having taken part in the attack on Comer, and the police officer answered: “No, it was Mr. Comer who indicated such persons.” That at once indicated to the judge that Comer had made a statement naming his attackers. He sent for the statement, and there found that Comer had done so. The learned judge then proceeded to put questions to the witness which, in the opinion of the court, ought to have been put by counsel for the prosecution after obtaining the judge’s leave to cross-examine. If the prosecution have information in their possession which shows that the evidence which a witness called for the prosecution has given is in flat contradiction of a previous statement which he has made and so entitles the prosecution to cross-examine, they should apply for leave to cross-examine and not leave it to the judge to do so, because it is counsel’s duty to cross-examine in such circumstances. If he has not done so, the judge has to do it. That is not right, because it may look as if the judge is taking sides, but he cannot help intervening in such circumstances, because it is his duty to see that the justice is done. The learned judge in this case was abundantly justified in sending for the statement and in asking the questions which he asked. I hope that in future in such cases counsel for the prosecution will not hesitate to ask for leave to cross-examine. 

Applications refused . 

Representation

Solicitors: Probyn, Dighton & Parkhouse, for the applicants. *164

 

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