REGINA v. RICE AND OTHERS

ICLR: King’s/Queen’s Bench Division/1963/Volume 1/REGINA v. RICE AND OTHERS. – [1963] 1 Q.B. 857

[1963] 1 Q.B. 857

[COURT OF CRIMINAL APPEAL]

REGINA v. RICE AND OTHERS.

1962 Nov. 26, 27, 28.

Ashworth, Salmon and Winn JJ.

1963 Jan. 29.

Crime – Evidence – Confession – Co-defendant, by – Statement by one defendant implicating other co-defendants – Prosecution’s omission to prove statement – Statement not produced by maker – Maker cross-examined by co-defendant – Whether prosecution may cross-examine maker on contents of statement – Whether prosecution may reveal making of statement by cross-examination of maker or co-defendant.

 

Evidence – Documentary – Airline ticket – Used ticket bearing names of defendants – Ticket produced from proper custody – Whether admissible – Whether hearsay – Probative significance.

 

R. and M. were tried with H. and other men on two counts of conspiracy. H. had made three statements to the police; two of the statements were induced, and the voluntary nature of the third was prima facie questionable. It was exhibited in the committal proceedings and contained allegations against R. and M. among others. None of the statements was tendered in evidence at the trial before the close of the case for the prosecution. H.’s defence was that he had been used as an innocent agent by R. and M., and the existence of the statements was first revealed to the jury when H. was cross-examined on behalf of one of his co-defendants. When H. was later cross-examined on behalf of the Crown he said that the third statement was voluntary and true, and, although the statement itself was not put to him, he was caused by a number of questions in leading form, based upon its contents, to repeat all the allegations against R. and M. which the Crown desired to elicit. Objection was made and the trial judge, although expressing anxiety about the use of the statement, ruled that in the circumstances there was no ground in law upon which to uphold the objection. Objection was also made to the admission in evidence of a used airline ticket with the names of R. and M. on it which was produced by an airline representative. The trial judge overruled that objection and the ticket was admitted as an exhibit for the Crown. All the defendants were convicted.

 

On appeal by R. and M., in which it was contended that the conduct of the trial was unsatisfactory in that, inter alia, because of the prosecution’s method of presenting the case, H.’s co-defendants were deprived of any opportunity of challenging the voluntary character of the third statement by cross-examination of the police officer to whom it was made, and the opportunity of submitting that H.’s virtually inevitable adoption of its contents in his evidence would be so prejudicial to his co-defendants as to make an order for separate trials imperative in the interests of justice:-

 

Held, (1) that there was a general principle of practice but no rule of law which required all evidentiary matter then available, on which it was intended to rely as probative of the guilt of a defendant

 

____________

 

[Reported by L. NORMAN WILLIAMS, Esq., Barrister-at-Law.]

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or any one of a number of co-defendants, to be adduced before the close of the prosecution’s case. Whether or not evidence subsequently for the first time available to the prosecution should be introduced at any later stage was a matter for the discretion of the trial judge (post, p. 867).

 

(2) That the principle that a defendant who had made a statement which was induced by threat or promise or was not truly voluntary could not be so questioned on his trial as to reveal that he had made that statement obtained in favour of any co-defendant of the maker of the statement (post, p. 868).

 

Rex v. Treacy (1944) 60 T.L.R. 544; [1944] 2 All E.R. 229; 30 Cr.App.R. 93, C.C.A., applied.

 

(3) That a voluntary statement made by one of several co-defendants could be used by the prosecution, in cross-examining him, as a tool to extract from him in the form of evidence upon oath all that he had formerly said against any co-defendant; that information derived from an induced statement could be used, although the fact that the information was provided in a statement could not be revealed to the jury since such revelation tended to lend weight to the subsequent evidence (post, p. 868); and that, in this case, the existence of the statements being known in advance to the co-defendants and being revealed first by them to the jury (post, p. 869), no injustice or unfair effect had resulted from the procedure of presentation (post, p. 869). Accordingly the trial judge rightly overruled the objection.

 

Per curiam. There is a distinction between cases where there is a single defendant and where two or more persons are charged. It would be rare to find justification for using a statement made by a single defendant, albeit voluntarily, for the first time after he has given evidence in chief and was being cross-examined (post, p. 867).

 

(4) That the relevance and legal admissibility of the ail line ticket stemmed from the balance of probability that an air ticket with a name or names on it and used on a flight had more likely than not been used by a man of that name or by one of two men of those names; but that it did not speak as to its contents, for theywere hearsay, and it did not constitute admissible evidence that the booking was effected by any man of the name or names on the ticket, a proper ruling on objection to production of the ticket being that the production of the ticket from proper custody was a fact from which the jury might infer that probably two people had flown on the particular flight, and that it might or might not seem to them, by applying common knowledge of such matters, that the passengers bore the surnames written on the ticket. In this case, the distinction between the booking of the ticket and its use were immaterial. The appeals against conviction should be dismissed.

 

APPEALS against conviction.

The appellants, Anthony John Rice and James Moore, together with Philip William Hoather and other men, were tried at the Central Criminal Court before the recorder, on an indictment containing two counts of conspiracy. The first count charged

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Rice, Moore and Hoather and three other named men with, on a day between March 1, 1961, and August 22, 1961, conspiring together with another named man and other persons unknown to steal motor-vehicles; the second count charged them with conspiring together to obtain registration books for stolen motor-vehicles.

 

Hoather had made two written statements, the second being dated August 27, 1961, to the police in Bristol, both of which were admittedly obtained by inducements of material assistance. On September 8, 1961, Hoather made a third statement to the police in London which contained allegations against Rice and Moore. In the committal proceedings reference was made to the making of the statements, and the third statement was exhibited. At the trial none of the statements was tendered in evidence before the close of the case for the Crown.

Hoather’s defence was that he had been utilised as an innocent agent by Rice and Moore, and he was cross-examined first by counsel for Rice about having made the statements. When he was later cross-examined by counsel for the Crown Hoather was asked whether the third statement was made without any inducement and was true, and he so affirmed. The statement itself was not put to him, although he was caused, by a number of questions in leading form based upon its contents, to repeat verbatim upon oath all that the Crown desired to adopt of his allegations against Rice and Moore, those allegations ranging outside the compass of the case opened and presented in evidence by the Crown.

 

Objection was made to the method of utilising the third statement, but the trial judge, although expressing some anxiety on the matter, ruled that in the circumstances in which the objection arose in the case there was no ground in law for upholding the objection.

In the third statement Hoather had said that Rice “flew me up” to Manchester about a week before a date identifiable as May 16, 1961. Police inquiries made of the airline, British European Airways, to check the information were fruitless. In cross-examination by counsel for Rice, Hoather said that he flew on the 10.40 a.m. flight on Friday at London Airport, and returned at 3.30 p.m., that Rice booked the tickets, and that the story could be checked at the airport. Later Rice was recalled for further cross-examination by counsel for the Crown and, for the first time as part of the case for the Crown, it was put to Rice that he had flown to Manchester on May 9, or possibly on another date with Hoather. Rice denied ever flying to Manchester, and

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he was also asked whether he had heard of Moore’s having flown to Manchester with Hoather; Rice said that he had not. He was asked to look at a document then handed to him, and to confirm that it was an air ticket for two seats on a flight from London to Manchester in the names of “Rice and Moore” for May 10, 1961; he said that he knew nothing of the ticket or how it came to be booked. The ticket was then made an exhibit and was shown to the jury. Later Moore was recalled and cross-examined on the ticket on similar lines, and it was also suggested to him that he had intended to go on the flight but that Hoather had used the seat booked for Moore.

After the close of the case for the defence the Crown applied for leave to call a representative of the airline to produce the ticket in evidence. Counsel for Rice objected; and, during the course of his submission, counsel for the Crown said: “It is not for one moment suggested that the point of this evidence is to prove that Rice or Moore or any particular person took this ticket up … it is evidence that this ticket was used for two persons on that particular flight to Manchester … it must be a relevant matter from which the jury can draw such inference as they think proper.” In ruling upon the objection the trial judge said: “Hoather in his evidence said that about a week before he actually opened up in Manchester, which he puts, I think, as May 16, he flew to Manchester and flew there in company with Rice. It appears now, scilicet from the ticket, that on May 10, not exactly a week before as Hoather said, but within 24 hours of it, two people did fly to Manchester at the time that Hoather says he flew there and one of them is called Rice. It goes no further than that and I propose to allow this evidence.” The ticket was then produced in evidence by a representative of the airline who had custody of flight tickets returned after use. During his summing-up the trial judge said: “I would not want you for one moment to treat these tickets as any kind of corroboration of the evidence of Hoather as far as Moore is concerned, because Hoather does not suggest that Moore went to Manchester. Therefore, so far as Moore is concerned, dismiss that document from your minds altogether. … Hoather having said that he went to Manchester for a man called Rice, who booked the tickets … you then find on May 10 a man called Rice, whoever he may have been, did book tickets upon the morning flight for Manchester and return. You may find that that evidence supports what Hoather says about that matter. It is simply evidence that

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on that date, or before that date, May 10, a man called Rice, whoever he may be, booked these air passages. … In considering Rice’s connection with” [Manchester] “if Hoather is believed – and that is for you – … if Hoather is believed he was behind the whole thing. But of course, it would be dangerous … to accept that evidence unless you find it corroborated, and you may think that … there is no evidence independent of Hoather’s that Rice was behind it beyond the explanation which you might regard as corroboration – and it is entirely for you to say whether you accept it or not … that on May 10 he flew to Manchester and back.”

 

All the men were convicted. Rice and Moore appealed against their convictions on the grounds that the trial had been unsatisfactory and prejudicial in that the trial judge wrongly permitted the Crown to cross-examine Hoather on the third statement when it had not been put in as part of the evidence of the prosecution and there had been no ruling on its admissibility; that he had wrongly permitted the Crown to exhibit the airline ticket when it was not evidence and to produce it after the close of the case for the defence; and that he had misdirected the jury about the evidential effect of the ticket.

 

Hoather and another defendant, William Frederick Russell, applied for leave to appeal against sentence. This report is limited to the appeals against conviction.

 

Jeremy Hutchinson Q.C. and Colin Ross-Monro for Rice and Moore. As to the use of the statement during cross-examination, see Rex v. Treacy1; the mischief here was that the prosecution’s questions were clearly being put from a statement made by Hoather previously, a statement which was inadmissible. Whether a statement is admissible or inadmissible is a matter of fact; and the procedure adopted was irregular so that the circumstances in which the statement was made were not, and could not be, inquired into. Had the prosecution adopted the regular procedure,i.e., introduced the statement in examination-in-chief, by calling the police officer concerned, the defence could have objected to its admissibility on the ground of inducement. By cross-examining Hoather on it, by use of this strange, irregular method, the prosecution avoided the probable objection.

 

As to the ticket; the cross-examination about the air ticket was quite wrong. The document should have been put to the

 

1     (1944) 60 T.L.R. 544; [1944] 2 All E.R. 229; 30 Cr.App.R. 93, C.C.A.

 

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witness, and he should have been asked whether he wished to modify his earlier evidence; if he did not wish to do so the document should have been put away. The ticket was introduced to destroy Rice’s credit. It was never part of the prosecution case until after it closed that Rice went to Manchester. There is no principle which allows the prosecution to call evidence in rebuttal of one defendant which supports the evidence of a co-defendant. If a defendant makes an allegation against a co-defendant, that does not entitle the prosecution to call rebutting evidence to support the defendant; if that is so, the prosecution cannot call rebutting evidence on a matter of credit; the prosecution cannot call the evidence if they have not observed the principles of rebuttal, because it is called on a matter of credit. The trial judge was wrong to allow the original application to call evidence on the ticket, since it was on credit; the application was not to call further evidence in view of what Hoather had said, but that an attempt was to be made to break Rice on credit. That was wrong: Rex v. Yousry.2 The principle is that if evidence has been given by a defendant introducing new matters which the prosecution could not foresee, the prosecution may call evidence in rebuttal to contradict it, with leave of the judge, who has a discretion. Such evidence may be called only on a matter arising ex improviso, and it must be such as no human ingenuity could have foreseen. Here Rice, in whose cross-examination the document was introduced, did not introduce any new matter; there was nothing in his evidence to be contradicted in the sense of the principle. It cannot be said that, by putting an allegation made by a co-defendant to a defendant and getting a denial, that the defendant has introduced new matter; the prosecution cannot claim, because he has denied an allegation made by a co-defendant, to call evidence in rebuttal. The prosecution cannot call evidence to support an allegation by a co-defendant, either to corroborate that co-defendant’s evidence or to destroy the credit of another defendant. In any event, in this case the prosecution could have foreseen this matter because all the information, except the time, was available, and they could, if they wished, have put in Hoather’s statement and have checked up on the date and have called the person who issued the ticket to identify the person who ordered it, and further have called the aircraft crew to identify the user or users. Rice is an enormous man, and readily identifiable because of his

 

2     (1914) 24 Cox 523; 11 Cr.App.R. 13, C.C.A.

 

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outstanding appearance. In any event the evidence was not admissible and should not have been admitted; that is, the ticket as such was not admissible; it was not admissible as to the truth of its contents; and the jury were not entitled to look at the contents of the ticket before it had been proved to be admissible evidence: Rex v. Day,3 Rex v. Liddle.4 [Reference was also made to Reg. v. Flynn5 and Reg. v. Gordon and Spencer.6]

 

Mervyn Griffith-Jones and J. C. Mathew for the Crown. As to the use of the statement; the cross-examination was proper whether or not the statement itself was admissible evidence; in fact it was admissible. The cross-examination was proper not only as a matter of law; it was unobjectionable. Rex v. Treacy7 can be distinguished. In fact, had Hoather in cross-examination differed from his statement, application would have been made by the prosecution to put it in. No kind of prejudice resulted to the defendants as a result of the course adopted. Had the statement been opened to the jury that would, in fact, have been prejudicial to the defendants involved in Hoather’s allegations; Hoather might not have given evidence, or might have changed his plea.

 

As to the ticket; two questions were involved; first, was the ticket admissible evidence against Rice? If it was not, that is the end of the matter, and it should not have been put in. It was admissible because it was relevant to the fact in issue, which was whether Rice flew to Manchester. The ticket, coupled with Hoather’s evidence, showed that a journey, at the time and on the date stated by Hoather, was made by a person who used the name of “Rice.” Until Hoather, in cross-examination, had stated the time of the flight, inquiries made by the police of the airline were fruitless because of the vagueness of the available information. [Reg. v. Gordon and Spencer8 was referred to.] Secondly, on the assumption that it was admissible evidence against Rice, was the ticket properly produced formally after the case for the defence was closed? The judge has a general discretion about the evidence, if any, which ought to be called at a late stage, either by himself or by anyone else: Rex v. Sullivan9; Rex v. McKenna10; Rex v. Wallwork.11 As to the summing-up, the ticket itself is real evidence.

 

3     [1940] 1 All E.R. 402; 27 Cr. App.R. 168, C.C.A.

4     (1928) 21 Cr.App.R. 3, C.C.A.

5     (1957) 42 Cr.App.R. 15, C.C.A.

6     (1958) 42 Cr.App.R. 177, C.C.A.

7     (1944) 60 T.L.R. 544.

8     (1958) 42 Cr.App.R. 177.

9     [1923] 1 K.B. 47; 16 Cr.App.R. 12; 27 Cox 187, C.C.A.

10     (1956) 40 Cr.App.R. 65, C.C.A.

11     (1958) 42 Cr.App.R. 153, C.C.A.

 

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Hutchinson Q.C. in reply. Whatever the merits of Rice, the point about the ticket is important. The question is whether the document wag admissible evidence of the fact that the air ticket between London and Manchester was used on May 10 by someone using the name of Rice, or whether it was evidence of the fact that it was booked in the name of Rice for or on May 10. The document cannot speak as to its contents, the words on it are hearsay. Although the ticket may have been relevant to show that Rice flew to Manchester, it was not legally receivable because no one could be cross-examined on the document, whether the proper procedure had been followed in its issue and who ordered it. If propel evidence had been called about its issue the defence would have had the opportunity of cross-examination based upon Rice’s outstanding appearance. The ticket was improperly put in to support the evidence of Hoather to prove that Rice flew, that is, not in rebuttal but as supplementary evidence in the general discretion of the trial judge in the interests of justice. That discretion is limited, once the prosecution’s case is closed, by the principles relating to evidence in rebuttal: Rex v. Liddle.12 Its admission was highly prejudicial to Moore, who did not cross-examine Hoather.

 

Cur. adv. vult.

 

January 26, 1963. ASHWORTH J. Winn J. will deliver the judgment of the court.

 

WINN J. read the following judgment of the court. Anthony John Rice and James Moore appeal by leave of the single judge against their convictions, after a trial at the Central Criminal Court before the recorder which lasted from February 21, 1962, to April 3, 1962, on two counts of conspiracy. One of those counts charged them with conspiring together and with one Luck who pleaded guilty, with one Bailey who was not apprehended, and with William Frederick Russell and Philip William Hoather who are applicants for leave to appeal only against sentence, to steal motor-cars; a man called James Frederick Gilbert, a police officer, was also so indicted but it was ruled that there was no case against him on that count. The other count charged all of those men, including Gilbert, with having conspired to obtain by dishonest means and by false pretences log books conferring

 

12     (1928) 21 Cr.App.R. 3.

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spurious new identities upon stolen cars; Gilbert was convicted but has not sought to appeal. The relevant misrepresentations were sometimes that a car was newly manufactured, sometimes that it was an import from Belgium.

 

It is manifest that the two conspiracies had the same material object, namely, the realisation of the value which the stolen cars would have if sold with a good title. It seems to the court that proof of the complicity of any person in the conspiracy to steal cars would also rationally establish, in the absence of any such contrary indication as a material separation in time, his complicity in the conspiracy to obtain new log books: the converse is, of course, not true as the position of Gilbert in this case demonstrates. This observation is of particular relevance to the position of the appellant Moore against whom no evidence, other than uncorroborated evidence of Luck, was adduced connecting him specifically with the second of the conspiracies.

 

The recorder told the jury accurately, and relevantly for the purposes of the present case, that in law a person is guilty of a conspiracy if he is proved “to have become with another or others a party to the common criminal design which the conspiracy alleged involves at any time during its existence.” It was plainly and rightly implicit in his direction, as the court holds with particular reference to the position of the appellant Moore, that it is not necessary to prove, by evidence of any overt act or otherwise, that any particular conspirator was a party to the common design in respect of its total scope or all of its ramifications.

 

The recorder accurately described to the jury the several methods of dishonestly acquiring motor-cars alleged by the Crown to have been comprised in the common criminal design to steal to which the appellants Rice and Moore were said to have been parties, and correctly told them that if they were sure “that there was an agreement between two or more persons to steal motor-cars by one or other of those methods then you will have found that the conspiracy alleged in the first count of this indictment did in fact exist.” A total of 21 motor-cars was involved. The methods he mentioned differed in kind and in respect of the place and the persons where and by whom they wererespectively operated; they were (1) driving away cars temporarily parked; (2) getting cars on hire-purchase, paying only a deposit and one or two instalments and then defaulting; (3) running a bogus business of taking in cars on sale or return; (4) obtaining cars from their owners against worthless cheques. He added the pertinent and proper observation that the value of

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cars so obtained would be realised only if they could be sold with fresh identities.

 

The case of the Crown was supported by a mass of evidence, a survey of which would be otiose for the purposes of this judgment and inevitably turgid. It needs to be said that both Luck, who was called by the Crown, and the applicant Hoather, who irrationally sought to maintain pleas of not guiltyby accusing the appellants, and particularly Rice, of utilising him as an innocent agent in manifestly dishonest activities, were described by the recorder as accomplices whom the jury might well regard as “accomplished liars,” and that a stringent and wholly proper warning was given that it would be dangerous to convict on any evidence of theirs which was not corroborated. Subject to the discussion of one point, which is reserved for a later stage of this judgment, an entirely proper direction was given as to the nature of corroboration and as to the matters which could in this case be regarded by the jury as affording corroboration.

 

[His Lordship reviewed the evidence relating to one incident in connection with Moore, and continued:] Without further review of the evidence the court is satisfied that a case was made out against Moore which fully supported his convictions on each of the conspiracy counts by the jury who heard him give his denials and explanations and were best able to judge him upon his demeanour: as regards Rice that ruling stands a fortiori, even without reference to other evidence which directly implicated him.

 

But in fact it has not been contended to the court that the evidence did not suffice to support the conviction of either of the appellants or that the jury convicted against the weight of the evidence: what has been maintained by counsel for Rice and Moore is that in two respects, mutually quite distinct, the conduct of their trial was unsatisfactory and prejudicial, and that with regard to one of those, which will be the second to receive consideration in this judgment, the recorder misdirected the jury in a material respect as to the effect of certain evidence.

 

The first of those matters was directly related to a statement made by Hoather on September 8, 1961, to the police in London. That statement was not tendered as part of the Crown’s case. When Hoather had given evidence he was so cross-examined by counsel for the Crown that although the statement was not itself put to him he was caused by a number of questions, in leading form, based upon its contents, to repeat verbatim upon oath all

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that the Crown desired to adopt of his allegations against his co-defendants Rice, Moore and Gilbert; those allegations ranged outside the compass of the case opened and presented in evidence by the Crown.

 

That method of utilising the statement was attacked at the trial and sought to be inhibited primarily by counsel who defended Gilbert, and it has been complained of in this court by counsel for Rice and Moore; as a method it was novel to the recorder and to each member of the court.

 

The recorder ruled that in the circumstances in which the objection arose in the present case there was no ground in law on which he could uphold the objection but expressed some anxiety about the matter. This court thinks that what he said was entirely right.

 

A clear distinction should be drawn between cases where there is a single defendant and cases where two or more persons stand charged; in the former category it would be rare indeed to find justification for so using a statement made by a single defendant, albeit wholly voluntary, for the first time after he had given evidence in chief and was being cross-examined. Different considerations apply where there are several defendants.

 

In this case there were adequate reasons which have been explained to the court, as they were to the recorder, by counsel for the Crown, for the adoption by the Crown of that method. The court wholly accepts the assurance that the motive was to avoid prejudice to Rice, Moore and Gilbert. Counsel for the Crown envisaged the possibility that the maker of a certain statement might elect not to give evidence or might change his plea to one of guilty.

 

Hoather had made a series of three statements to police officers, two to the Bristol police which were admittedly obtained by inducements of material assistance and the third one subsequently to the police in London on September 8, 1961; the voluntary character of the latter was prima facie questionable. At the trial, as distinct from the committal proceedings, none of those statements was tendered in evidence before the case for the Crown was closed. There is a general principle of practice, the court thinks, though no rule of law, requiring that all evidentiary matter that the Crown intend to rely upon as probative of the guilt of a defendant or of the guilt of any one of a number of co-defendants, should be adduced before the close of the prosecution case if it be then available. Whether or not evidence subsequently for the first time available to the Crown should be

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introduced at any later stage is a matter to be determined by the trial judge in his discretion, exercised, subject to certain limits imposed by authorities which need not for the present purpose be examined, in such a way and subject to such safeguards as seems to him best suited to achieve justice between the Crown and the defendants, and between the defendants. In the present case no question arises as to the proper practice controlling the admission of evidence in rebuttal: references made at the trial to that topic were misconceived in the view of the court, upon a full analysis of the course which the proceedings took.

 

In the present case none of the statements made to various police officers by Hoather could, as such, be probative of the guilt of any of the other defendants, however damning might be any references in it to any of the other defendants. Of Hoather’s own guilt any of those statements which was wholly voluntary and uninduced, but only a statement of that character, would be probative in so far as it contained admissions by him. Any evidence given by Hoather adopting on oath allegations already made against a co-defendant in a statement whethervoluntary or induced would, of course, be evidence for the jury to consider against that co-defendant, albeit evidence of an accomplice. In fact Hoather was asked in cross-examination by counsel for the Crown whether his third statement was made without any inducement and was true, and he so affirmed.

 

It is clear from Rex v. Treacy1 that a person solely accused who has in fact made a statement but one which was induced by a threat or promise or was otherwise not truly voluntary cannot be so questioned upon his trial as to reveal that he has made that statement. The court thinks that the same principle obtains in favour of any co-defendant of the maker of such a statement. The decision in Rex v. Treacy2 in no way supports any contention that the fact that a voluntary statement has been made cannot or should not be established or revealed in a cross-examination of its maker: on the contrary such a statement made by one of several co-defendants can undoubtedly be used by the Crown, in cross-examining him, as atool to extract from him in the form of evidence upon oath all that he has formerly said against any co-defendant. On the other hand, while information derived from an induced statement may be used, the fact that it was provided in a statement may not be revealed to the

 

1     (1944) 60 T.L.R. 544; [1944] 2 All E.R. 229; 30 Cr.App.R. 93, C.C.A.

2     Ibid.

 

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jury, since evidence of, or revelation of that fact tends in common sense to lend weight to the subsequent evidence and is excluded, as has already been said, by the principle enunciated in Rex v. Treacy.3

 

The substance of what was said by counsel for Rice and Moore, as cogently as could be, by way of complaint of the abnormality, which he called “irregularity,” of the presentation of the case for the Crown in the trial of the present appellants is, the court thinks, that he was deprived of any opportunity to challenge, by cross-examination of the police officer to whom the statement was made, its voluntary character (and so to ascertain the limits of its utility under the controlling effect of Rex v. Treacy4 and of any effective chance of submitting that the statement of Hoather, and a fortiori his virtually inevitable adoption of its contents in his evidence, would be so prejudicial to the co-defendants as to make an order for separate trials imperative in the interests of justice. That contention has merited and has received close attention. The court notes that in the present case the existence of statements made by Hoather was known in advance toand was first revealed to the jury by his co-defendants. It is possible that in some hypothetical future case where the circumstances were different a similar objection might prevail, if, for example, it be envisaged that in any such trial postponement ofany mention by the Crown of a statement having been made might conceivably have been motivated by reluctance to call a witness to establish affirmatively the voluntary character of the statement, and by a preference to gamble upon the continued readiness of a suborned defendant to assert that his statement was wholly voluntary.

 

That would be a wholly different case from the present in which the court is satisfied after thorough consideration that no injustice or unfair effect resulted from the adoption of an abnormal and by no means universally desirable procedure of presentation.

 

Another important and relatively difficult aspect of the trial was related to the production in evidence of an airline passenger ticket and the references made to this ticket in the summing-up. It is necessary to descend into some detail in order to establish the background against which that ticket is seen to be a significant object.

 

3     60 T.L.R. 544.

4     Ibid.

 

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When Hoather made to the police in London his third statement, of September 8, 1961, which was made an exhibit in the committal proceedings, he said, inter alia: “[Rice] asked me if I would like to go to Manchester to take over a motor showroom. I said I wouldn’t mind if the money was all right; so he flew me up there to look the place over. There were two chaps waiting at the airfield for us. … Rice told me that they would be the people I would be working for. We all went together to look at these motor showrooms … it was called the Northern Auto Agency.”

 

Pausing a moment it may be said with brutal bluntness that that agency was a fraudulent bucket-shop into which a number of cars belonging to unsuspecting would-be sellers disappeared and turned up later in the hands of the applicant Russell for sale, after fraudulent re-registration.

 

Hoather also said in his statement that it was about a week after Rice had flown with him to Manchester that he started to work at the Northern Auto Agency and that, on the very evening on which he started, two cars, identifiable by his description, were brought in for sale; it could be established, accordingly, that the evening to which he referred was that of May 16, 1961. The court was informed by counsel, and of course accepts, that police inquiries were made of the airline to check that information, but were fruitless by reason of its vagueness.

 

When Hoather gave evidence in chief on March 8, 1962, he asserted that Rice had asked him if he would like to go to Manchester and “run a car front for him” and that Rice took him up there; he then said that he started work in Manchester on the evening of May 14, and came back to London on May 22, in a car deposited with the Northern Auto Agency on sale or return which he leftwith Rice on the latter’s instructions. When cross-examined by counsel, on behalf of Rice, Hoather said that he thought he went to Manchester to start work on a Tuesday and thought it was May 14; in fact the only Tuesday which could be relevant having regard to other established dates was Tuesday May 16, 1961. Hoather then said that he flew up with Rice “about a week before” on the “10.40 a.m. flight on Friday at London Airport” and came back at 3.30 p.m. He asserted that Rice booked the tickets, and claimed that his story could be checked up at the airport, when challenged as to his veracity. When cross-examined by counsel for the Crown, Hoather agreed that it was on May 16 that he started work in Manchester; thus

[1963] 1 Q.B. 857 Page  871

 

it appeared, in effect, that Hoather was saying that Rice and he flew there on May 9.

 

Some eight or 10 days later, on March 22, 1962, Rice was recalled for further cross-examination by counsel for the Crown and then for the first time there was put to him as part of the case for the Crown, on the strength of Hoather’s evidence, the suggestion that he had indeed flown to Manchester on May 9, 1961, or possibly on another date, with Hoather. Rice denied that he had ever flown to Manchester and said he had been trying to check up where he was on May 9. (Rice was also asked, perhaps rather unfortunately, whether he had heard of Moore having flown to Manchester with Hoather; he said he had not.)

 

On the following day, March 23, 1962, Rice was asked by counsel for the Crown to look at a document then handed to him. Prematurely, having regard to the state of the evidence then existing, but in the outcome this was of no importance, counsel asked the witness to confirm that this was an air ticket for two seats on a flight from London to Manchester in the names of “Rice and Moore” for May 10, 1961, and suggested that in truth Rice had flown to Manchester on that day. Rice said he knew nothing of the ticket or how it came to be booked. The ticket was then made an exhibit, and was shown to the jury.

 

On March 26, 1962, Moore was cross-examined by counsel for the Crown on similar lines: the suggestion put to Moore was that he had intended to go on the flight but Hoather had used the seat booked for Moore.

 

Subsequently, after objection and discussion, that ticket was produced in evidence by the airline representative whose function it was to deal with flight tickets returned after use. The court has no doubt that the ticket and the fact of the presence of that ticket in the file or other place where tickets used by passengers would in the ordinary course be found, were facts which were in logic relevant to the issue whether or not there flew on those flights two men either of whom was a Mr. Rice or a Mr. Moore.

 

The relevance of that ticket in logic and its legal admissibility as a piece of real evidence both stem from the same root, viz., the balance of probability recognised by common sense and common knowledge that an air ticket which has been used on a flight and which has a name upon it has more likely than not been used by a man of that name or by one of two men whose names are upon it.

 

A comparable document would be a passport, which is more

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likely on the whole to be in the possession of the person to whom it was issued than that of anyone having no right to it.

 

It is, however, essential, whether for the purposes of logical reasoning or for a consideration of the evidentiary effect in law of any such document, to distinguish clearly between its relevance and its probative significance: the document must not be treated as speaking its contents for what it might say could only be hearsay. Thus a passport cannot say “my bearer is X” nor the air ticket “I was issued to Y.”

 

Counsel for the Crown clearly appreciated and accepted this distinction when he said during the discussion of objection to the admission of the ticket in evidence: “it is not for one moment suggested that the point of this evidence is to prove that Rice or Moore or any particular person took this ticket up … it is evidence that this ticket was used for two persons on that particular flight to Manchester … it must be a relevant matter from which the jury can draw such inference as they think proper.”

 

In ruling upon the objection the recorder said: “Hoather in his evidence said that about a week before he actually opened up in Manchester, which he puts, I think, as May 16, he flew to Manchester and flew there in company with Rice. It appears now, scilicet from the ticket, that on May 10, not exactly a week before as Hoather said, but within 24 hours of it, two people did fly to Manchester at the time that Hoather says he flew there and one of them is called Rice. It goes no further than that and I propose to allow this evidence.”

 

The court thinks that it would have been more accurate had the recorder said that the production of the ticket from the place where used tickets would properly be kept was a fact from which the jury might infer that probably two people had flown on the particular flight and that it might or might not seem to them by applying their common knowledge of such matters that the passengers bore the surnames which were written on the ticket.

 

It is plain that the latter inference was not one to be readily accepted in a case where it was not suggested that Moore, whose name was on the ticket, had actually flown; indeed it is obvious that pro tanto the potential inference was excluded. Nevertheless it remained open for partial acceptance in respect of Rice.

 

When summing up on this matter the recorder gave a direction which afforded complete protection to Moore against any adverse effect from the introduction into evidence of this ticket; this protection extended, the court thinks, not only to any issue which

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might have been but never was raised as to whether he had actually flown to Manchester, but also to the suggestion which rather unfortunately was made, without any support in the evidence, that Moore might have contemplated undertaking that flight. The recorder said: “I would not want you for one moment to treat these tickets as any kind of corroboration of the evidence of Hoather as far as Moore is concerned, because Hoather does not suggest that Moore went to Manchester. Therefore, so far as Moore is concerned, dismiss that document from your minds altogether.”

 

So far as Rice was concerned the ticket was treated differently and assumed importance from the direction given that the jury might, if they saw fit, regard it as a corroboration of Hoather’s evidence that Rice flew with him to Manchester and that Rice booked the ticket.

 

In one passage the recorder put it thus: “In considering Rice’s connection with Northern Auto Agency if Hoather is believed – and that is for you – … if Hoather is believed, [Rice] was behind the whole thing. But, of course, it would be dangerous … to accept that evidence unless you find it corroborated, and you may think that … there is no evidence independent of Hoather’s that Rice was behind it beyond the explanation which you might regard as corroboration – and it is entirely for you to say whether you accept it or not … that on May 10 he flew to Manchester and back.” The court finds no misdirection in that passage; indeed it put well the issue: did Rice fly to Manchester with Hoather? The matter was also referred to in an earlier passage in the following somewhat less appropriate terms: “… Hoather having said that he went to Manchester for a man called Rice, who booked the tickets … you then find on May 10 a man called Rice, whoever he may have been, did book tickets upon the morning flight for Manchester and return. You may find that that evidence supports what Hoather says about that matter. It is simply evidence that on that date, or before that date, May 10, a man called Rice, whoever he may be, booked these air passages.”

 

The court doubts whether the air ticket could constitute admissible evidence that the booking was effected either by Rice or even by any man of that name but it does not think that for relevant purposes the distinction between the booking of the ticket and the use of it was material with regard either to the case against Rice or to his defence.

 

At one stage of the appeal it did seem that that distinction

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might be highly significant because Rice instructed his counsel to assert on his behalf an alibi for May 10, 1961, maintaining that he spent that day in Southampton and there attended an auction of motor-cars. The court granted leave to call four witnesses in support of that alibi, one of whom, Sheila Dixon, produced a book which she swore to be a diary containing an entry for May 10, 1961, recording that she had that day lunched with Rice in Southampton; the Crown called evidence in rebuttal. The court rejects the evidence of the alibi witnesses and directs that the attention of the Director of Public Prosecutions be called to the evidence given by Sheila Dixon before this court (which, when it grants the rare indulgence of allowing fresh evidence to be called, is entitled, it feels, to expect that such evidence will not be rashly put forward).

 

The appeals of Rice and Moore against their convictions are dismissed.

 

Appeals dismissed.

Leave to appeal to the House of Lords refused.

Solicitors: Goodman, Monroe & Co.; Bishop & Cooke; Registrar of Court of Criminal Appeal; Director of Public Prosecutions.