ATTORNEY-GENERAL OF NORTHERN RHODESIA v.

ALFRED OLIVER TROLLOPE

(1963-1964) Z. AND N.R.L.R. 146 (C.A.)

COURT OF APPEAL

[Before the Honourable the Chief Justice, SIR DIARMAID CONROY, the Honourable
Mr. Justice BLAGDEN and the Honourable Mr. Justice WHELAN on the 22nd
September, 1964.]

Flynote

Extent of duty upon the prosecution to make available to the defence the
statements of witnesses interrogated by the Crown, but not called as
prosecution witnesses.

Headnote

The accused was convicted in the magistrate's court of being drunk in charge of a
locomotive contrary to 157B (2) of the Penal Code. He appealed to the High
Court, and had his appeal allowed, on the grounds that his fireman had been a
material witness, and had made a statement in the accused's favour, but had
not been called by the prosecution, nor had his statement been made available
to the defence. It subsequently appeared that the fireman had been present in
the magistrate's court at the time that the question of whether he should be
called or not was canvassed.

Held:

(a) The fireman was available in court as a witness if the defence wished to call
him.
(b) As the witness was present, the defence could have taken a statement
from him, and in default, could not complain that the prosecution had not made
the witness's statement available.

Appeal allowed.

Cases referred to:

(1) R. v. Bryant and Dickson 31 Cr. App. R 146.

(2) Dallison v. Caffery [1964] 2 All E.R. 610.

For the Crown: D. A. O'Connor, Crown Counsel

For the respondent: C. J. I. Cunningham

Judgment

CONROY, C.J.: This is an appeal by the Attorney-General under section 12 (3) (a) of
the Federal Supreme Court Act, because he is dissatisfied with the judgment of
the High Court upon a point of law in the exercise of its appellate jurisdiction. The
matter arises in the following way.
The respondent was convicted by the Senior Resident Magistrate, Lusaka, of
being drunk in charge of a locomotive contrary to section 157B (2) of the Penal
Code. The respondent first appeared before the magistrate on 6th May, 1964,
when he pleaded not guilty and the matter was then adjourned to 20th May. It
was not possible to complete the hearing on 20th May, so the case was
adjourned, part-heard, until 28th May, when the hearing was completed and
judgment was reserved until 4th June. Throughout the trial, the respondent was
represented by Mr. Cunningham.144

At the hearing on 20th May the guard of the train gave evidence and the public
prosecutor asked him what was the fireman's condition.

The following passage then appears in the record:

Defence Counsel: I object.

Court: Only relevant if fireman is to be called as witness to show if

he was able to observe, etc.

Public Prosecutor: I shall not call him.

Defence Counsel: I do not think I will call him and in any event, if I did, Crown

could call evidence in rebuttal of condition.

Court: In that case evidence should not now be called.

The fireman was available at the court that day, but he did not attend on the
adjourned hearing on 28th May.
At the close of case for the prosecution, on 28th May, the accused elected to say
nothing, and defence counsel told the magistrate that he had no defence
witnesses. The public prosecutor then addressed the court, and so did defence
counsel. In the course of his address, defence counsel posed the question why the
fireman had not been called, as he was a " compelling " witness. The magistrate's
note on defence counsel's address on this point reads:

Why did fireman not testify? Was he also drunk - if so, why not jointly
charged? If not a participant in alleged offence, why wasn't he called?

In his judgment the learned senior resident magistrate said:

"Defence counsel's allegation that the Crown was wrong not to call the
fireman may, for all I know, have some substance. In the normal course of events
the Crown's obligation is to put all relevant witnesses before the court.
However, they may have had the best of reasons for not calling the fireman, and
as to whether they were right or wrong must at this stage remain a matter of
conjecture. They did not call him, but neither, I would remark, did the defence."

I remark, obiter, that I think the magistrate was wrong to exclude the evidence as
to the fireman's condition, as such evidence was both relevant and admissible.
That exclusion produced the paradoxical position of defence counsel who, by his
objection, had prevented such evidence being led, then raising, as a matter
against the Crown, conjecture as to the fireman's condition.

The respondent appealed to the High Court against conviction on a number of

grounds, one only of which is now relevant. It was as follows. The fireman had
made a statement to the police which was favourable to the defence. When the
prosecution decided not to call him, the failure to make the statement available
to the defence constituted a miscarriage of justice as it deprived the respondent
of a chance of acquittal.

The learned judge allowed the appeal on this ground. In his judgment he outlined
the history of the matter and stated that the fireman " had been in attendance
when the case first came before the court, but not on the days of hearing." This is
factually incorrect, and it would appear that the learned judge was misinformed
in this respect. The fireman was in attendance at court on the first full day's
hearing on 20th May, when the public prosecutor said that he was not going to
call him, and there was nothing to stop the defence counsel from then
interviewing; the fireman and taking a statement from him.

The learned judge held that it was the duty of the prosecution to make available
to the defence evidence which the Crown was not going to call and which assisted
the defence. He said:

"Making available evidence to the defence does not admit of any precise
definition. Inherent in the phrase, is that the defence is at least informed of the
witnesses whom the Crown does not intend to call but who have indicated that
they can give evidence in respect of specified matters which may be material to
the defence, and that the Crown has no objection to the defence interviewing
them."

This practice was not infringed by the prosecution. Quite clearly the fireman was a
material witness. On 20th May the prosecution told the defence that he was not
being called as a Crown witness. He was then at the court.
We were referred to two authorities. The first was R. v. Bryant and Dickson, 31
Cr. App. R 146. In that case a man called Campbell, who could give material
evidence, was not called by either side. After committal for trial by the
magistrate's court the director of public prosecutions informed the defence that
the Crown did not intend to call him and that there would be no objection to
the defence taking a statement from him if they wished to do so. Neither side
called Campbell, although he attended the trial, and the accused were
convicted. They appealed on the ground that the prosecution, having taken a
statement from Campbell and having decided not to call him as a witness, were
under a duty to furnish the defence with a copy of the statement. Lord Goddard
said, in giving the decision of the court:

". . . if the defence did not choose to take a statement and find out what
he was prepared to say, that is not a matter with which the prosecution are
concerned. In the opinion of the court it is quite wrong to say that it was the
duty of the prosecution in these circumstances, having made Campbell available
to the defence as a witness if they wished to call him, to go further and produce
the statement which he made."

The second authority is Dallison v. Caffery [1964] 2 All E.R. 610. At page 618, Lord
Denning, M.R., said:

"The duty of a prosecuting counsel or solicitor, as I have always

understood it, is this: if he knows of a credible witness who can speak to
material facts which tend to show the prisoner to be innocent, he must either
call that witness himself or make his statement available to the defence. It
would be highly reprehensible to conceal from the court the evidence which
such a witness can give. If the prosecuting counsel or solicitor knows, not of a
credible witness, but a witness whom he does not accept as credible, he should
tell the defence about him so that they can call him if they wish."

Diplock, LJ, at page 622, had this to say:

"This contention seems to me to be based on the erroneous proposition

that it is the duty of a prosecutor to place before the court all the evidence
known to him, whether or not it is probative of the guilt of the accused person.
A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he
happens to have information from a credible witness which is inconsistent with
the guilt of the accused, or although not inconsistent with his guilt is helpful to
the accused, the prosecutor should make such witness available to the defence
(see R. v. Bryant and Dickson (sic) [1946] Cr. App. R 146)."

In the instant case the learned judge held that the Crown, by not making available
to the defence the fireman's statement, had deprived the appellant of a chance of
acquittal which would otherwise have been reasonably open to him. I do not
agree. It must have been clear to everyone in general and to defence counsel in
particular that the fireman travelling on the footplate of the locomotive with the
respondent at the time of the offence charged, must have been a most material
witness. When, in the early stages of the Crown case, the defence was told that
the Crown was not going to call the fireman, it was the duty of the defence to
investigate its case properly; the defence should have interviewed the witness,
who was available at the court that day. Having failed to investigate his case
properly, defence counsel was not entitled to blame the Crown for not making
the witness available. In my view the law is correctly stated by Diplock, L.J., in
Dallison v. Caffery, and by the Court of Criminal Appeal in Bryant' case. In so far as
there is a conflict between the judgment in Bryant's case and the dictum of Lord
Denning in Dallison's case, I think that the law is more correctly expressed in
Bryant's case. The court there consisted of Lord Goddard, C.J., and Humphreys
and Lynskey, J.J. The matter is one of day-by-day practice in the criminal courts,
and with the possible exception of Avory, J., there has been, this century, no
judge with a greater experience of such matters than Humphreys, J. In my view of
the law, as the defence did not choose to take a statement from the fireman and
find out what he was prepared to say, that was not a matter with which the
prosecution were concerned.

I think the learned judge erred in this case, and I think his error arose from the
fact that he was not told that the fireman was present on the day of hearing (20th
May) when the public prosecutor announced that he was not going to call the
fireman as a witness. Mr. O'Connor, with his usual fairness, conceded that this
was the fault of the Crown.

I would allow this appeal.

Judgment

Blagden, J.A.: I agree.

Judgment

Whelan, J.: I agree.147