Ref: A00-300995 Case No. 871626 Macpherson II
Volume I, Pages 42-51, Thursday 8th June, 1989
Leading to: Volume II, Pages 1-3, Friday 9th June, 1989
(In the presence of the jury)
MR. TEMPLE: My Lord there have been administrative difficulties
with regard to the availability of witnesses. There is
certainly one matter of law I wish to canvass with your
Lordship. We can certainly use the remaining time this
afternoon usefully.
MR. JUSTICE MACPHERSON: Not to put too fine a point on it, you
have run out of witnesses?
MR. TEMPLE: Your Lordship puts it beautifully.
MR. JUSTICE MACPHERSON: I do not mind as long as the programme
is up to time.
MR. TEMPLE: One of the reason we have run out of witnesses is
speed.
MR. JUSTICE MACPHERSON: That is a healthy thought. Ladies and
gentlemen, from time to time there are matters of law with
which I have to attend myself and you do not, so I will ask
you to leave and we will discuss further matters of law.
(The jury left the court)
Discussion: Contempt of Court Order rules
MR. JUSTICE MACPHERSON: Mr. Temple, do I need, every time we
have an adjournment, to say, "Contempt of Court Order rules",
or does it rule there in any event?
MR. TEMPLE: My understanding was your Lordship indicated the
Contempt of Court ruling under Section 4, would only apply to
arguments and observations made in the absence of the jury.
MR. JUSTICE MACPHERSON: It applies in the case of each absence
of the jury although, since there are no press in court, it
is useless to say it today when they might be here tomorrow.
I do not want to run any risk of someone publishing anything
which ought not to be published. If you observe that there
are reporters in court who have not been here, perhaps one of
you would help me so that I can remind them when matters are
raised.
MR. TEMPLE: I think your Lordship may have considerable
confidence in the expertise of the reporters.
MR. JUSTICE MACPHERSON: Yes, I think so, but you know what it
is like.
Discussion: evidence of passports
MR. TEMPLE: Yes, my Lord. I think it might be advantageous to
use some of the time this afternoon. May I introduce the
subject in this way: Mr. Beckman indicated to me that he
took exception to the Crown leading any evidence with regard
to passports and this defendant having in his possession
differing passports and initially I accepted that indication
from Mr. Beckman on the basis that it probably was not going
to add anything to the jury's capability to resolve the issue
before them. Of course, as a result of cross-examination, we
now have in evidence from Miss Majszazyk that the defendant
said to her, "I have seven different identities and passports
to go with them".
One of the difficulties which the Crown face in this
trial is of course to put a balanced picture in front of the
jury and to lead evidence which is going to fairly reflect in
front of the jury the reality of the case as the prosecution
see it. You have in this case this interesting combination
of a man who, according to the medical evidence, was
certainly hypoactive and was subject to perhaps flights of
fancy. On the other hand you have an equally powerful stream
of evidence which goes to demonstrate quite clearly that he
had the capacity for clear thought and not everything he said
was devoid of merit or devoid of the truth.
In the Crown's submission there is now a bit of evidence
relating to the provision of passports which really falls
within that category. In other words, the category where it
can be said that the defendant's comments relating to the
provision of passports is not in the imagination but happens
to be true and he has taken advantage of the passports to
which he has alluded. That is the background evidentially.
The position with regard to passports raises its head
during the evidence of Mr. Prendergast, which I can summarise
to your Lordship. Mr. Prendergast is one of the security
officers attached to one of the hotels visited by the
defendant and he is able to say, through a computer print-
out, that the defendant booked in to the Inter Continental
Hotel on 26th March using a passport in the name of Miller.
Your Lordship will also recollect that a driving licence
in the name of Miller was also found at Strickland Court,
although I have, again at Mr. Beckman's request, excised any
reference to that in the jury's bundle. The number of the
Miller passport was 835492, which is a different number from
the two passports which were found at Strickland Court, and
the Crown say that in those circumstances the evidence of
Mr. Prendergast with regard to the defendant making use of
the Miller passport when he first came to this country on
26th March is relevant and probative.
MR. JUSTICE MACPHERSON: Just that one?
MR. TEMPLE: No, my Lord. I anticipate that the evidence will
be that one of the other witnesses who form the group of
four mentioned by Miss Thompson certainly mentions the
defendant telling her that he had access to a number of
passports. In fact, she saw some passports including a Swiss
passport.
MR. JUSTICE MACPHERSON: This has now been raised by the defence
in the questioning of Miss Majszazyk?
MR. TEMPLE: Yes, it has.
MR. BECKMAN: My Lord, it was an answer to a question rather
than a question.
MR. JUSTICE MACPHERSON: I cannot remember the question; it was a
very general one as to whether there was anything else - I
can look it up if necessary - and she said, "He said he had
seven different identities and passports to match". It
emerged from your very wide question, Mr. Beckman. Therefore
it is in now so what am I to do?
MR. BECKMAN: Years of experience and one still asks the wrong
question occasionally.
MR. JUSTICE MACPHERSON: It is not a matter for frivolity. I
think it was a question which laid you open to the widest of
answers, which you received. The other matter we are dealing
with is these two pieces of evidence, one about the Miller
passport, and the other being if the young man is called
whether he is allowed to say he saw a Swiss passport.
MR. TEMPLE: If it assists your Lordship, it is the statement at
page 54, lines 12 and 13.
MR. JUSTICE MACPHERSON: Yes, I remember it.
MR. TEMPLE: "I recall a passport in Swiss and English in his
name and it had his photograph."
MR. JUSTICE MACPHERSON: What about the two bits of evidence?
In the light of this somewhat bizarre case, is it not right
that the whole of the picture should go before the jury?
MR. BECKMAN: It has been excluded and can only be excluded for
two reasons: one is irrelevance, because the issue relates
to whether or not he made a demand of the Cyprus Government
and the separate count. That is one issue, so first of all
I do not see the relevance of it.
MR. JUSTICE MACPHERSON: That is not the wide issue of the case.
It seems to me there is no issue that the demand by the
delivery of the document was made. The issue being raised
by the defence, quite properly, is this man, is he a
hypomanic or fanciful or whatever expression one likes to
use, and that is surely the object of your questions to the
two witnesses who have been in the witness box?
MR. BECKMAN: No, my Lord, with respect, there are various issues
that will arise in relation to the question and certainly
not at any time am I prepared to use, adopt or agree with the
suggestion of hypomania at all. There are other matters.
May I in due course develop them in my own way and in my own
time?
MR. JUSTICE MACPHERSON: Of course, it may well have to come
shortly. If I am going to rule shortly on evidence of this
kind I will have to know what is the defence.
MR. BECKMAN: May I say it will be made absolutely clear, as the
evidence develops, exactly what the position is and how the
case is put, and there are going to be - and I give my friend
ample notice of it - a lot of argument, matters raised - one
submission which may take a considerable period of time in
relation to these matters.
MR. JUSTICE MACPHERSON: You make things difficult for me because
you say there is one issue only, as to whether he made a
demand with menaces. The funamental [sic] issue seems to be
likely to indicate this man's state of mind. If that is to
be explored it would be quite wrong to let in part of his
activities and exclude another part which might suggest he
was really a devious man putting on an act and doing things
which were dishonest. At the moment it seems to me that all
this evidence is plainly relevant and has some weight, and
accordingly is a matter eventually for the jury.
MR. BECKMAN: My Lord, if I may say so, the way that your
Lordship put it accurately adumbrates the way in which the
Crown put it in opening the case, which is basically saying
this without - whatever the defence may say about (inaudible)
whatever they may say about joke, whatever they may say about
lack of intention - anticipating a valid defence. There are
other matters as well.
The evidence shows this man was in our view perhaps
suffering from hypomania, which does not make him any problem
other than it shows that he is suffering from hypomania.
Then in those circumstances he can be responsible for his
actions. That would explain his being bizarre; equally it
means he is responsible for his actions. My friend has said
he has anticipated four or five lines of defence; there are
more and can I get back to this: the reason the passports
are out by agreement are one, either because of irrelevance
or because prejudicial outweighs probative.
MR. JUSTICE MACPHERSON: You use an expression I do not under-
stand: "The reason the passports are out".
MR. BECKMAN: Are out by agreement.
MR. JUSTICE MACPHERSON: They were until you introduced it.
MR. BECKMAN: I am aware what occurred. All I am expanding to
your Lordship is that it was agreed they were out. Those
reasons remain valid on their own, namely irrelevance or
prejudicial outweighs probative, which is similar in its own
way because there is a certain amount of relevance
(inaudible). Your Lordship then has a duty to ensure a fair
trial thereafter.
My learned friend does not resile from the agreement,
including what he very properly says are the reasons for
making that agreement. What he properly says is, "There may
well be in general the question you have to answer, who
introduced the passports?" Now my learned friend wants to
say, "Oh, I do not resile from it but having got that, I want
to use that opportunity to get in matters otherwise agreed to
be out. I want to use that for a totally different purpose,
one which related to the answer that Miss Majszazyk gave.
I want now to establish, using various other witnesses, that
there are other passports which were never used in this case
or suggested to be used, but effectively it is going to show
a man who is more devious than silly" - if I may put it in
these simple terms - "and more devious than joking".
With respect, because of a chance remark that is made by
a witness in reply to a general question in cross-examination
all this becomes unfair to enable evidence, which is
admittedly on the face of it irrelevant or prejudicial rather
than probative, to suddenly find its way in. That smacks as
it were of taking advantage of a chance remark a witness
gives solely to a general question. Your Lordship then is
left with what is agreed to be irrelevant or prejudicial and,
therefore, should be out.
Merely because a witness gives a chance answer which
will be forgotten in time, it does not affect the immediate
issue my friend wants to try and prove. It would be most
unfair then to permit - I do not think his application is
proper in the way - unfair to permit him to take advantage of
that. In this case, on the face of it, just about
everything at the moment is admitted with no dispute at all -
time saving indeed. If the prosecution do not have a case on
that it would be unfair to allow them, because of that sort
of side remark by a witness, it would be unfair in those
circumstances to allow the prosecution to load their case.
Those are my submissions.
MR. JUSTICE MACPHERSON: I will postpone a decision in this
matter so those two witnesses must be delayed. I think it is
highly likely the evidence is relevant but if Mr. Beckman is
going to (inaudible) then I will consider the matter.
Meanwhile, I suggest the defendant reconsider his position;
the passport was brought out by the use of a question on his
behalf or so the name Miller was (inaudible) in this case can
be raised later.
MR. BECKMAN: I must say something immediately. Your Lordship is
aware the question of being signed in in the name of Miller
is right. I cannot admit something which is false, that he
had a passport in the name of Miller.
MR. JUSTICE MACPHERSON: It is not for you to make comments of
that nature at this stage, Mr. Beckman.
(The trial was adjourned until the following day)
Volume II, Pages 1-3, Friday 9th June, 1989
(In the absence of the jury)
Discussion: evidence of passports
MR. JUSTICE MACPHERSON: There is nothing to discuss this morning
is there?
MR. TEMPLE: Save to this effect: obviously your Lordship will
remember that Mr. Beckman had to reply with no notice at all
on the propositions that I was putting forward. The reality
is that he and I have had an opportunity to discuss the
question of the Miller passport and are able to agree amongst
ourselves in a limited aspect of the argument that the
fairest way to approach it would be to lead evidence to the
effect that the defendant booked into the Inter Continental
on 26th March in the name of S.A. Miller and gave a false
passport number.
Dealing with it in that way I think is the fairest
approach, because it then does not become necessary to look
at the driving licence. The driving licence does take
matters considerably further because on the Crown's view of
the potential evidence it can be shown that the driving
licence bears a forged signature in the name of S.A. Miller
and the forged signature follows very closely the genuine
signature of S.A. Miller. What that in turn means is that
whoever forged S.A. Miller's name on a driving licence would
have had access to other documents taken from Miller.
MR. JUSTICE MACPHERSON: I leave it to you, if that is the
agreement.
MR. TEMPLE: It is. What I am really saying is the Miller aspect
takes the matter no further and I readily accept it would
have no relevance to the jury's enquiry. Thus my Lord, it
boils down to this: I think your Lordship will be asked in
the course of time to rule upon the admissibility of evidence
which it is proposed to lead from Cripps about seeing the
passports, but that need not trouble the Court.
MR. JUSTICE MACPHERSON: That I have already ruled that I will
postpone to later when I see the shape of the defence case.
MR. TEMPLE: I have always understood Mr. Beckman's argument of
yesterday to be couched under the provisions of Section 78,
namely the unfairness principle.
MR. JUSTICE MACPHERSON: Very well.
MR. BECKMAN: There is another matter but it does not have to be
raised. It is to apprise your Lordship of something I am
going to do.
MR. JUSTICE MACPHERSON: Perhaps you had better raise that now.
MR. BECKMAN: Very shortly, what it is is this: there will be
cross-examination by me in relation to the Greek witnesses
which relates more specifically to things that may have
happened on advice and questions (inaudible) which in fact is
something which can arise under Section 78 of PACE, which
means your Lordship would have to exclude it as being
inadmissible. To save time the way I suggest I will do it is
this: I will not ask for a trial within a trial, which will
expand the case by days, what I will do is deal with the
matter by way of cross-examination in the presence of the
jury. If, after hearing it, your Lordship rules, as a
result of the authorities and the application of Section 78,
that it is inadmissible when we come to the submissions, that
evidence will be as if it had never taken place. We thought
that was the quickest and most effective way to save time.
MR. JUSTICE MACPHERSON: If you think that is the best way in the
interests of your client ---
MR. BECKMAN: It is not so much my client; it is a method of
saving between two and three days of court time.
MR. JUSTICE MACPHERSON: Thank you very much.
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