Smith v Director of Public Prosecutions [2008] EWHC 771 (Admin)

Case No CO/11283/2007[2008] EWHC 771 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 18th March 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE DYSON
MR JUSTICE LLOYD JONES
Between
JOHN KENNETH PATRICK SMITHClaimantv
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ashley Barnes (instructed by Hemsley) appeared for ClaimantNeil Christian (instructed by the Crown Prosection Service) appeared for Defendant
J U D G M E N T

LORD JUSTICE DYSON:

[1]This is an appeal by way of case stated against the decision made on 19th April 2007 by District Judge Morgan, sitting at Chester Youth Court, to convict the appellant of an offence of criminal damage. The charge on which he was convicted was that he damaged a glass door panel belonging to George Smith, intending to destroy or damage it or being reckless as to whether it would be destroyed or damaged. Section A of the case stated sets out the relevant aspects of the proceedings. It records that evidence was given for the Crown by Miss Dupree, and statements by Police Constable Hughes, relating to the record of interview, were read.[2]Mr Barnes, who appeared for the appellant in the court below, as he has done this morning, made a submission of no case to answer at the end of the Crown case. The submission was based on the argument that the evidence of identification that had been led was insufficient to found a conviction. The case stated records that before the judge ruled on that submission, the Crown applied to reopen their case and recall Miss Dupree. The District Judge acceded to the application. Upon the completion of her evidence, after she had been recalled, there was no renewal of the submission of no case to answer. The appellant himself did not give evidence.[3]The facts as found by the District

Judge were as follows:

"1. On 19th April 2007 at about 3.50 pm, Miss K Dupree, following receipt of a telephone call, went to the rear of 20 Burton Road to look for the dog of Mr George Smith, the owner of that property. "2. When Miss K Dupree arrived 20 Burton Road, she saw that the back gate had been kicked in. "3. On her arrival at the address she saw "
John Smith in the garden with a gas cylinder." She saw him smash the bottom window of the back door. She was 10 feet away. Miss Dupree saw him drop the cylinder and run. She called the police. "4. Over a period of 4 years the house at Burton Road has been damaged on a regular basis. "5. In cross-examination Miss Dupree confirmed it was John Smith holding the cylinder. "6. In answer to the questions from counsel for the appellant, Miss K Dupree stated, "John Smith was at the same school as me for a period of time. He lives around the corner from me with his nan... I am 100 per cent certain it was him." "7. When Miss K Dupree saw John Smith smash the window there was nobody else in the garden. "8. When Miss K Dupree was recalled she gave the following evidence about the John Smith she saw in the garden on 9th April 2007. "a. Description of his height, build, age and colour of hair (I found these fitted the description of the appellant). "b. She had seen him on Monday, a few days before (the hearing took place on the Thursday of that week). "c. If she saw him she would recognise him. She did not know his middle names but believed he lived at number 2 Burton Road (the appellant lived at number 12 Burton Road). "d. When asked by me if she had seen him today she stated that she had seen him outside the court when he shouted abuse at her and threatened her by saying, 'It is you that is going to need witness protection, you fucking grass.' "e. She was with a friend at court who also saw him 'as he went to spit on her.' She again said she was 100 per cent certain it is the person she sees in court today. "f. She sees him 'once in a blue moon.' "9. When the appellant was interviewed he said he knew nothing about the damage to the rear as he had been at his grandmother's address (number 12 Burton Road) most of the afternoon. "10. The appellant ran away from the police when they went to arrest him. He said he did this as he was smoking weed. "11. None of the evidence given by the prosecution (witness) Miss K Dupree was directly challenged by the appellant." The questions of law on which the opinion of this court is sought have been expressed in the following terms at section C:
"1. Was the learned District Judge right of his own motion to recall the main prosecution witness to give more detailed evidence as to the identification of the appellant upon hearing counsel make a submission of no case to answer when: "a. The appellant had in interview denied his presence at the location of the alleged offence. "b. The appellant had, in interview, put forward an alibi. "c. Counsel for the appellant had put to the witness that 'whoever you saw, it was not John Smith.' "d. The witness confirmed during cross-examination that she had not been asked to attend any type of identification procedure, and "2. Having recalled the witness, was the District Judge right to ask her, 'Have you seen him (the appellant) today?' In the face of counsel for the defendant's specific request that no dock identification be sought."
Although the first question refers to the District Judge recalling the witness of his own motion, the case stated says that she was recalled at the request of the Crown and not by the judge. It is accepted on behalf of the appellant that this appeal should proceed on the basis that she was recalled at the request of the Crown. The issue raised by the first question is whether the Crown case should have been reopened at all. It is submitted by Mr Barnes that the Crown was put on notice that this was a case about disputed identification. In his interview the appellant had denied being at or near 20 Burton Road on the afternoon when the offence was committed. Miss Dupree was cross-examined along the lines that whoever she saw on 9th April 2007, it was not the appellant. He submits that it is a general principle that all evidence on which the Crown intends to rely as probative of the defendant's guilt should be adduced before the close of the Crown case if it is then available to them. Whether evidence subsequently available to the Crown should be allowed to be adduced at a later stage is a matter for the trial judge's discretion, which must be exercised within the limits imposed by the case law and in such a way and subject to such safeguards as seem to the judge best suited to achieve justice between the Crown and the defendant (see R v Rice [1963] 1 QB 857 47 Cr App R 79 at page 85).[4]Mr Barnes makes the point that the judge does not make it clear in the case stated why he allowed the Crown to reopen its case. I find it impossible to divine from the case stated why the judge did allow the Crown to do this. It seems, however, reasonable to infer that it must have been because the Crown wished to bolster its case on identification by eliciting further evidence from Miss Dupree. For the Crown, Mr Christian submits that the judge had a discretion to allow the prosecution to reopen its case and recall the witness. He submits that the exercise of discretion in this case was one reasonably open to the judge. In particular, he makes the point that the Crown was taken by surprise on one aspect of the identification evidence. John Smith is a common name. In the course of the cross-examination of Miss Dupree it was not suggested to her that she might have been referring to a different John Smith from the John Smith who was before the court. This point was one of the planks on which Mr Barnes based his submission of no case to answer. There was in fact a perfectly good response to that point based upon the decision of this court in Ellis v Jones [1973] 2 All ER 893, but, as I have said, before the judge ruled on the submission, the Crown sought to adduce evidence to strengthen its case, in particular on this point. It was for that reason that Miss Dupree was asked to give a description of the John Smith whom she said she saw, and as the case stated makes clear, that description coincided with the description of the appellant as the District Judge found.[5]It is undoubtedly correct to say that the judge had a discretion to allow the Crown to reopen its case for the purpose of recalling Miss Dupree. The general principle of practice referred to in the decision in Rice is a salutary one: Prosecuting authorities should not be encouraged to believe that they can reopen a case to adduce evidence which was available to them but which they did not adduce before a case was closed. Sloppiness would result if it were thought that omissions could routinely be made good by the Crown at a later stage in the proceedings. On the other hand, the interests of the defendant must be balanced against the public interest in ensuring that those who have committed crimes should be convicted.[6]In Middleton v Rowlett [1954] 1 WLR 831, this court upheld the magistrates' refusal to allow the Crown to reopen their case to prove the identity of the driver in proceedings for dangerous driving. The Crown had closed their case without adducing any evidence that the defendant was the driver. A submission of no case answer was made on the basis that it had not been proved that the defendant was the driver. The magistrates refused an application by the Crown to reopen their case in order to prove that the defendant was the driver and they dismissed the information. Lord Goddard, Chief Justice said that it was a matter of discretion and it could not be said that the justices were bound to allow the case reopened. The case was "rather a borderline case" but he could not say that the magistrates had exercised their discretion unjudicially.[7]It is unfortunate that the District Judge in the present case did not explain why he allowed the application, but in my view his decision to allow the Crown to reopen their case and recall Miss Dupree was not a plainly wrong exercise of his discretion. The defence case had not yet been opened. Miss Dupree had already given evidence that the person who had committed the offence that she described was John Smith, who lived around the corner from her and who used to be at her school. She said she was 100 per cent certain that it was him. In order to meet the point which Mr Barnes was making in the course of his submission of no case to answer, the judge was, in my view, entitled to permit the Crown to strengthen their case by allowing Miss Dupree to give evidence of the description of the appellant, which she gave when she was recalled.[8]It seems to me that although many judges may not have allowed the application to reopen the case, it cannot be said that the decision to do so was a plainly wrong exercise of discretion. In my judgment, if the dock identification issue raised by the second question is left on one side, the appellant was not prejudiced by the judge's decision. On the other hand, the Crown might well have been prejudiced if the judge had not acceded to the application.[9]The second question concerns the judge's question to Miss Dupree, "Have you seen him today?" It is common ground that this question was tantamount to a dock identification. Moreover, it is common ground now that the judge should not have asked this question. In those circumstances, I do not find it necessary to consider the authorities, in particular those authorities which seek to draw a distinction between dock identification cases in summary trials and those where dock identifications are made in cases being tried before a jury. As has been pointed out by Mr Barnes, the appellant in this case faced a serious charge of attempted burglary, for which, but for his age, almost certainly he would have been tried by a jury. But in view of the fact that it is now conceded by Mr Christian that the question asked by the judge should not have been asked by him, I do not find it necessary to consider this aspect of the matter any further. It follows that I would answer the two questions on which the opinion of the court is sought as follows. Question 1: The judge was entitled to permit the prosecution to reopen their case after it had been closed. Question 2: The judge was wrong to ask Miss Dupree the question, "Have you seen him today?"[10]What follows from the answer to the second question? Should we allow the appeal? On behalf of the Crown, Mr Christian submits that the question which led to the dock identification caused no prejudice to the appellant in the event. That is because Miss Dupree had already given cogent evidence identifying the appellant as the person whom she had seen commit the offence on 9th April 2007. She had stated that the person who committed the offence was John Smith, and on her recall she gave a description of the person whom she saw, which corresponded with the description of the appellant. Mr Christian submits that since the dock identification came after clear and unequivocal identification by Miss Dupree, there was no risk of prejudice and this conviction is therefore safe, and we should not allow the appeal.[11]At first sight there seems to be considerable force in that submission, but I do not feel able to accept it. The premise upon which that submission is based is that the evidence of Miss Dupree was so strong and persuasive that, even without the dock identification, the judge would have accepted it and found to the criminal standard of proof that this appellant was the perpetrator of the offence on 9th April 2007. But this court is not in a position to know what assessment the judge had made of Miss Dupree's evidence. If he had been so sure on the basis of her evidence, supplemented as it was by what she said when recalled, that she had identified the perpetrator of the offence as the appellant, then one asks, "Why did the judge ask a question which he should have known was one which it was inappropriate to ask?" In any event, why did he ask the question? I am driven to infer that he must have asked the question because he thought that if Miss Dupree did identify the appellant in the court, that would reinforce her other evidence and assist him to come to a clear conclusion that the appellant was the offender.[12]The only alternative is that the judge asked a question which was not only inappropriate but which was completely unnecessary and pointless. I do not think that it is safe to infer that the judge asked such a question. There are a number of features of this case stated which cause me some anxiety. It seems to me that there is force in the point made by Mr Barnes in his skeleton argument that the tone of the case stated generally is more akin to a skeleton argument on behalf of the Crown than a document prepared by a judge. If, as I think must be inferred, he considered that the answer to the question was of some materiality, then the fact that the question was asked, and the answer given, leads me to have some doubts as to the safety of this conviction. I am also somewhat exercised by whether the appellant received a trial which can be said to have been wholly fair. For all these reasons I have reached the conclusion that the conviction cannot be regarded as safe and I would allow the appeal.

MR JUSTICE LLOYD JONES: I agree.

LORD JUSTICE DYSON: Thank you both very much.