Domestic abuse - Prosecution application to adduce hearsay evidence
[2024]JRC251
Royal Court
(Samedi)
18 November 2024
Before :
|
Sir Michael Birt, Commissioner
|
The Attorney General
-v-
N
Ms C. Hall, Crown Advocate.
Advocate O. A. Blakeley for the Defendant.
JUDGMENT
THE COMMISSIONER:
1.
A few days
before the trial of the Defendant for two offences of domestic abuse was due to
begin, I sat to consider the application of the prosecution to adduce certain
hearsay evidence in circumstances where the Complainant would not be giving
evidence. Following the hearing, I
ruled that certain res gestae evidence should be admitted but that a
subsequent witness statement by the Complainant should not be admitted. What follows constitutes my reasons for
those decisions.
Factual background
2.
At the
time of the hearing before me, the Defendant was charged with two offences of
domestic abuse. Count 1 was said to
have occurred on 9 May 2024 and count 2 on 10 May 2024. Following my decision, the prosecution
sought and were granted leave to amend the indictment by substituting a charge
of common assault as count 1 in place of the original charge of domestic abuse,
but nothing turns on that.
The prosecution case
3.
The
Defendant and the Complainant had been in a relationship and had lived together
since a date in 2023. At the time
of the alleged offences, the Complainant was pregnant with the
Defendant’s child and there is medical evidence that this is a high risk
pregnancy. There was an altercation
between the parties on 9 May which is the subject of count 1.
4.
Following
that incident, the next day, the Complainant said to the Defendant that she did
not wish him to come back to the house and he agreed he would stay at
friends. However, at about 11pm
that night, the Defendant came back to the house, at which point the
Complainant was asleep. A verbal
argument then began and this turned into a physical altercation. At a couple of points, the Complainant
recorded what was happening on a video on her mobile phone. The prosecution case is that the
Defendant committed four acts of abusive behaviour on10 May, each of which
constituted an offence of assault under Jersey law, namely (i) attempting to
slam a door on the Complainant; (ii) punching the Complainant to the face;
(iii) pulling the Complainant to the floor and kicking her; (iv) grabbing and
holding the Complainant by the neck.
The last two acts took place in the lounge following which the Defendant
went into the bedroom. At this
point the Complainant made a 999 call to the police. During the course of that call she said
that she had been assaulted by her boyfriend and she gave certain details as to
the nature of the violence he had used towards her. She was clearly distressed during the
call.
5.
The police
were sent to the address as a result of the call and arrived whilst the
Complainant was still speaking to the police control room on the 999 call. PC Bastable and PC Welsby entered the
accommodation and activated their body worn cameras. Their footage recorded
certain statements by the Complainant about how the Defendant had assaulted her
and also showed the Complainant in a distressed state. The Defendant was still in the bedroom
when the police arrived and was subsequently arrested.
6.
The
Complainant and the Defendant were subsequently examined by the force medical
examiner and both were found to have injuries. The Defendant was subsequently
interviewed. He denied certain of
the alleged acts and said that the rest had been carried out in self-defence as
it was the Complainant who was attacking him, following which there was a
struggle.
The Complainant’s position
7.
The
Complainant provided a witness statement on 11 May giving a full description of
what she said the Defendant had done.
Ten days later she provided a further statement in which she said that
she no longer wished to support a prosecution and wished to retract her
original statement, although she confirmed that the contents of that statement
were true and accurate. She
explained in the further statement that she did not want any animosity with the
Defendant once the baby was born.
She said she would like him to be part of the child’s life as she
knew he was a good parent. She was
finding the whole process mentally and emotionally draining and did not want
the additional stress which the court process carried.
8.
At that
point, the prosecution decided to give the Complainant time to see if she
changed her mind. On 21 August,
having spoken to her again, the police emailed the prosecution to say that the
Complainant still did not wish to give evidence in court and was suffering
considerable stress at the thought.
On 5 September, Dr Ruddy, the consultant psychiatrist involved in the
Complainant’s care, wrote to express concern about the effect which the
stress of being a witness was having on the Complainant’s mental health
and pregnancy. He asked if it would
be possible for her to give pre-recorded evidence in order to relieve the
stress. Following this, DC Thomas
of the public protection unit had a further conversation with the Complainant
and she provided a witness statement in connection with that conversation. She said that the Complainant was not
happy that Dr Ruddy had suggested she could give pre-recorded evidence as she
was clear that she did not want to give any evidence. She said that she did not wish to give
evidence via a pre-recorded video interview or via live video link. She did not want to be involved at all
which was why she had retracted her original statement. She was not scared but she did not want
to be blamed if the Defendant went to jail. She did not wish to be responsible for
him not seeing his own children and their child. She said it would massively affect his
future and she did not want to have anything to do with it. Not going to court at all would
massively reduce her anxiety and assist with improving her current poor mental
health.
9.
The
prosecution have considered whether to summons the Complainant to give
evidence. However, given the
evidence of the Complainant’s state of mental health and the possible
effect on her pregnancy (which is already considered to be high risk) they have
decided that it would not be right to insist on the Complainant giving oral
evidence.
10. It is against that background that the
prosecution made the application for the Complainant’s evidence to be
admitted as hearsay.
The hearsay evidence
11. The prosecution applied to admit the following
hearsay evidence:
(i)
The
statements by the Complainant in the body worn camera footage of PC Bastable;
(ii) The statements by the Complainant in the body
worn camera footage of PC Welsby;
(iii) The 999 call made by the Complainant; and
(iv) The witness statement of the Complainant dated
11 May 2024.
The statutory provisions
12. The admissibility of hearsay evidence is dealt
with in Part 8 of the Police Procedures and Civil Evidence (Jersey) Law 2003
(“the Law”). The
relevant provisions for present purposes are as follows:
“64 Admissibility of
statement not made in oral evidence
(1) In criminal proceedings a statement not made in
oral evidence in the proceedings is admissible as evidence of any matter stated
if, but only if:
(a) any provision of this Part or another provision
of an enactment makes it admissible;
(b) any rule of customary law referred to in
Article 64A makes it admissible;
(c) all parties to the proceedings agree to it
being admissible; or
(d) the court is satisfied that it is in the
interests of justice for it to be admissible…
64A Admissibility of statement under rules
of customary law
For the purposes of Article
64(1)(b), any rule of customary law in respect of the following
(a) ..
(b) res gestae….
65 Cases where a witness is
unavailable
(1) In criminal proceedings a statement not made in
oral evidence in the proceedings is admissible as evidence of any matter stated
if:
…
(c) any condition listed in
paragraph (2) is satisfied.
(2) The conditions are…
(b) the relevant person is unfit to be a witness because of his or
her bodily or mental condition….”
13. In her skeleton argument, Crown Advocate Hall
submitted that all four categories of hearsay evidence sought to be admitted
were admissible under Article 65(2)(b), namely that the Complainant was “unfit”
to be a witness. In oral argument,
she accepted that the evidence on this aspect was not strong but did not
abandon the submission.
14. In my judgment, there is insufficient evidence
to show that the Complainant is unfit to be a witness. Dr Ruddy does not say so in specific
terms; he says merely that he is concerned about the stress and asks if the Complainant
could give evidence by pre-recorded evidence rather than by giving direct
evidence in court. It is important
that Article 65(2)(b) should not be diluted simply to cover cases where a
witness will, quite naturally, be stressed or anxious about giving
evidence. The statute is specific
in using the word “unfit”. As Archbold (2022 edition) states at
11-19:
“A statement from a doctor
that it would be in the best interests of the witness if she were able to
submit written evidence was hardly equivalent to proof that she was unfit to
attend because of her mental condition; whilst pointing in that direction, it
was not sufficient; the provision in question is important as it is necessary
that statements of witnesses who are indeed unfit should be able to be given,
but it is equally important that there is proper protection against the
admission of such statements unless the relevant conditions are indeed
satisfied.”
15. Accordingly, if the hearsay evidence is to be
admitted, the prosecution must bring it within one of the other gateways
available under the Law.
Res gestae
16. Crown Advocate Hall submitted that what the
Complainant said about the incident on 10 May as recorded in the body worn
camera footage of the police officers (“the footage”) and the 999
call are admissible under Article 64(1)(b) (read with Article 64A(b)) as res
gestae. She accepts, correctly,
that the witness statement is not res gestae and is therefore not
admissible under this gateway.
17. Advocate Blakeley does not dispute that the 999
call and the footage constitute res gestae but submits that they should
be excluded under Article 76 of the Law on the ground that the admission of the
evidence would so adversely affect the fairness of the proceedings that the
court ought not to admit it.
18. Despite the common ground that this evidence
constitutes res gestae, it is helpful to remind oneself why such
evidence is admissible, as the reasons for allowing such evidence as an
exception to the hearsay rule may be relevant when one considers whether, as a
matter of discretion, it ought nevertheless to be excluded under Article 76.
19. The position as to res gestae in Jersey
was summarised in AG v McKeegan [2018] JRC 063 in the following terms at
[18]-[20]:
“18. In Shewan v
AG [2006] JLR 79 the Court of Appeal held that the law of Jersey in
relation to res gestae is similar to English law and is derived from the
principles set out in Ratten v R [1972] AC 378 and R v Andrews
[1987] AC 281. In Ratten, Lord
Wilberforce confirmed that a hearsay statement made by the victim of an attack
or by a bystander was admissible if it was part of the res gestae. He then went on to explain what this
meant and concluded at 391 that the authorities:-
"...show that there is ample
support for the principle that hearsay evidence may be admitted if the
statement providing it is made in such conditions (always being those of
approximate but not exact contemporaneity) of involvement or pressure as to
exclude the possibility of concoction or distortion to the advantage of the maker
or the disadvantage of the accused."
19. Earlier, at 388,
he had said this:-
"The possibility of
concoction, or fabrication, where it exists, is on the other hand an entirely
valid reason for exclusion, and is probably the real test which judges in fact
apply. In their Lordship's opinion
this should be recognised and applied directly as the relevance test: the test
should be not the uncertain one whether the making of the statement was in some
sense part of the event or transaction.
This may often be difficult to establish: such external matters as the
time which elapses between the events and the speaking of the words (or vice
versa), and the differences in location being relevant factors but not, taken
by themselves, decisive criteria.
As regards statements made after the event it must be for the judge, by
preliminary ruling, to satisfy himself that the statement was so clearly made
in circumstances of spontaneity or involvement in the event that the
possibility of concoction can be disregarded. Conversely, if he considers that the
statement was made by way of narrative of a detached prior event so that the
speaker was so disengaged from it as to be able to construct or adapt his
account, he should exclude it."
20. The position was
authoritatively summarised by Lord Ackner in Andrews where he said this at
300:-
"My Lords, may I therefore
summarise the position which confronts the trial judge when faced in a criminal
case with an application under the res gestae doctrine to admit evidence of
statements, with a view to establishing the truth of some fact thus narrated,
such evidence being truly categorised as 'hearsay evidence':-
1. The
primary question which the judge must ask himself is - can the possibility of
concoction or distortion be disregarded?
2. To
answer that question the judge must first consider the circumstances in which
the particular statement was made, in order to satisfy himself that the event
was so unusual or startling or dramatic as to dominate the thoughts of the
victim, so that his utterance was an instinctive reaction to that event, thus
giving no real opportunity for reasoned reflection. In such a situation the judge would be
entitled to conclude that the involvement or the pressure of the event would
exclude the possibility of concoction or distortion, providing that the
statement was made in conditions of approximate but not exact contemporaneity.
3. In
order for the statement to be sufficiently 'spontaneous' it must be so closely
associated with the event which has excited the statement, that it can be
fairly stated that the mind of the declarant was still dominated by the
event. Thus the judge must be
satisfied that the event, which provided the trigger mechanism for the
statement, was still operative. The
fact that the statement was made in answer to a question is but one factor to
consider under this heading.
4.
Quite apart from the time factor, there may be special features in the
case, which relate to the possibility of concoction or distortion...... The
judge must be satisfied that the circumstances were such that having regard to
the special feature of malice, there was no possibility of any concoction or
distortion to the advantage of the maker or the disadvantage of the accused.
5. As
to the possibility of error in the facts narrated in the statement, if only the
ordinary fallibility of human recollection is relied upon, this goes to the
weight to be attached to and not to the admissibility of the statement and is
therefore a matter for the jury.
However, here again there may be special features that may give rise to
the possibility of error. In the
instant case there was evidence that the deceased had drunk to excess, well
over double the permitted limit for driving a motor car. Another example would be where the
identification was made in circumstances of particular difficulty or where the
declarant suffered from defective eyesight. In such circumstances the trial judge
must consider whether he can exclude the possibility of error."”
20. I have no hesitation in concluding that both
the 999 call and the comments made by the Complainant in the footage are
admissible as res gestae. They were made in circumstances where the
events in question were dominating the thoughts of the Complainant so that what
she said was an instinctive reaction, with no real opportunity for reasoned
reflection and therefore concoction or distortion.
21. The 999 call was made immediately upon the
Defendant leaving the lounge after the alleged incident and going to the
bedroom. It was therefore made
moments after the alleged abusive behaviour in circumstances where the
Complainant was still clearly very distressed. Similarly, the footage was taken when
the thoughts and emotions of the Complainant were still dominated by what had
just happened. The police arrived
whilst the Complainant was still on the 999 call and accordingly there was no
delay. It is clear from the footage
that she was still very distressed.
22. Having held that what the Complainant said in
the 999 call and the footage forms part of the res gestae, it follows
that this evidence is admissible; see R v W (Attorney General’s
reference No 1 of 2003, [2003] EWCA Crim 1286 at [18] and [21]). The question then is whether such
evidence should nevertheless be excluded under Article 76 because the
Complainant will not be giving oral evidence and will therefore not be
available for cross-examination. In
this respect I was referred to a number of cases.
23. In Wills v Crown Prosecution Service
[2016] EWHC 3779 (Admin), the defendants were convicted of assault before the
magistrates and appealed to the Divisional Court by way of case stated on the
ground that certain res gestae evidence, consisting of statements made
by the complainant to a neighbour immediately after the assault and to the
police on their arrival following a 999 call made from the neighbour’s
house, had been wrongly admitted in the absence of the complainant to give
evidence.
24. The circumstances in which this arose were
that, on the day of the trial before the magistrates, the complainant did not
appear. The prosecution were not
aware that she would not be present and were unable to explain her
absence. After an adjournment of an
hour to see if she arrived, the magistrates decided to proceed in her absence
and allowed the prosecution’s application to adduce the res gestae
evidence referred to above in the absence of the complainant.
25. In its judgment, the Divisional Court was
highly critical of the fact that no enquiries were made as to why the
complainant had not appeared. The
court considered that it was unfair to admit res gestae evidence in the
absence of the complainant without there being a full explanation of why the
complainant was not present, so that the court could take this into account
when deciding whether to admit the res gestae evidence in the
complainant’s absence. In the
circumstances, the Divisional Court quashed the conviction.
26. It is clear that the decision in Wills
established an important principle which has been referred to in subsequent
cases, namely that before any res gestae evidence is to be admitted in
the absence of the complainant, the prosecution must make full enquiries and do
what they can to get the complainant to give evidence. The court needs to be made aware of
these matters when deciding whether to exclude the res gestae evidence in the
absence of the complainant.
27. Accepting fully the principle established in Wills,
I do not consider it to be relevant in the present case. The material placed before me, including
the witness statement from PC Thomas, explains exactly what efforts have been
made to persuade the Complainant to participate in the criminal proceedings and
why she is not willing to do so. I
therefore have the necessary information to allow me to decide whether the res
gestae evidence in this case should be excluded.
28. In DPP v Barton [2024] 2 Cr App R 15,
the complainant made a 999 call to the police stating that she had been
assaulted by the defendant, who was her husband. The police arrived about 25 minutes
later and there was body worn camera footage of statements by the complainant
about how her husband had assaulted her.
However, the complainant was unwilling to provide a witness statement
and later sent a letter to the police saying that she had been drinking on the
night in question and that she no longer thought she had been assaulted. She did not support a prosecution and
had said from the outset that she did not.
The court held at [11] that the court below had been “plainly
correct” to find that the 999 call and the complainant’s words
as recorded on the body worn video footage in which she stated her husband had
assaulted her, were admissible as res gestae.
29. At the trial before the district judge,
although the complainant was present, the prosecution said that they were not
willing to call her as it was concerned that, although this was not a case
where she was in fear, she would not give a truthful account. The judge then struck out the prosecution
as an abuse of process on the ground that the defendant could not have a fair
trial if the prosecution did not call the complainant to give evidence. The prosecution appealed that decision
to the Divisional Court by way of case stated.
30. The main part of the appeal was concerned with
whether the district judge had been entitled to stay the prosecution as an
abuse of process. On this aspect,
the Divisional Court held that the prosecution had acted perfectly reasonably
in not calling a witness whom they thought would be untruthful and that the
judge was wrong to stay the proceedings on the ground that the defendant could
not have a fair trial. It would
have been open to the defendant to call the complainant, who was expected to
give evidence in favour of the defendant, or for the judge himself to call the
complainant so as to allow cross-examination by both sides.
31. For present purposes, the relevant part of the
judgment is where the court considered obiter whether, if the judge had not
stopped the trial, he would have been bound to exclude the res gestae
evidence under the equivalent of Article 76 of the Law. The defendant, through his counsel, Mr
Csoka, submitted that the case law established a general principle that, apart
from a case where a complainant is in fear of attending court to give evidence,
a defendant will not receive a fair trial where the prosecution is relying on
the complainant’s res gestae evidence, unless the prosecution either
calls or tenders the witness to give evidence.
32. Dame Victoria Sharp P, giving the judgment of
the court, rejected this submission.
She said as follows at [64]-[66]:
“64. In the sensitive and specific context of
domestic abuse, the position, in our opinion, is very different from that
advocated for by Mr Csoka. It is
that it will often not be unfair to allow the prosecution to adduce the res
gestae evidence of a complainant where they are not called as a witness, and
there is an absence of fear. As is
now well understood, it is not uncommon in such cases for there to be
sufficient evidence to prosecute the alleged perpetrator of the abuse even
where the complainant does not support the prosecution. In our opinion, in such cases the public
interest may often demand the use of res gestae evidence, particularly recorded
evidence, regardless of the cooperation of the complainant.
65. As the Court of Appeal observed in R v C
[2007] EWCA Crim 3463 at [12]:
“…an
alleged victim of domestic violence is in a peculiarly unhappy position, namely
of being required to give evidence against someone with whom perhaps she is
still living but certainly for whom she still has feelings of affection. She is unlikely therefore to want to
make matters worse for him, still less to have to do so in a public place. To require her, if that is her attitude
and if she has made clear that she does not want to support the prosecution
publicly, to go into the witness-box and be cross-examined by the prosecution
in that way may, in certain circumstances, only exacerbate the wretched
situation in which she finds herself.”
66. At [14], the Court of Appeal
considered how the prosecution could deal with this common situation. It explained that it could seek to
adduce that evidence which properly fell within the res gestae exception,
together with any direct evidence, such as police body-worn footage, that
tended to support the veracity or accuracy of the hearsay evidence, without any
need to rely on the complainant’s testimony…..”
The court concluded by saying that it would
clearly have been open to the judge not to exclude the res gestae evidence.
33. In Vilhete v Crown Prosecution Service
[2024] EWHC 2171 (Admin), the defendant was convicted before the
magistrates’ court of assaulting his ex-partner. He appealed to the Crown Court which
dismissed that appeal. He then
appealed to the High Court by way of case stated.
34. The prosecution case was that the defendant had
attended at the complainant’s home where, during the course of an
argument, he had punched the complainant in the face several times causing
injury. The defendant had left whereupon
the complainant made a 999 call to the police during which she said had been
assaulted by her ex-partner some five minutes earlier. She was distressed during the call. The police arrived shortly after the 999
call ended. Body worn camera
footage recorded the complainant, still in some distress, stating that the
defendant had assaulted her some ten to fifteen minutes earlier. Having initially provided a witness
statement, the complainant provided a further statement a few weeks later
withdrawing her support for a prosecution.
She felt that the defendant needed help for his mental health and did
not think the matter should be taken to court. She maintained this stance through to
trial.
35. Before the magistrates and the Crown Court, the
res gestae evidence consisting of the 999 call and the
complainant’s account recorded in the body worn camera footage was ruled
to be admissible as res gestae and the Crown Court explained why it did
not exclude that evidence under the equivalent of Article 76 on the ground of
unfairness.
36. On appeal to the High Court, Mould J noted that
there was a statement from the officer in charge explaining to the Crown Court
the efforts which had been made to persuade the complainant to give evidence
and why she was not willing to do so.
The judge also referred to what had been said in R v C and Barton
in the passages quoted at para 32 above.
The judge rejected the submission on behalf of the defendant that the
hearsay evidence should have been excluded because of the inability to
cross-examine the complainant and upheld the conviction.
37. In my judgment, these cases show that it is not
the case that res gestae evidence will necessarily be excluded if the
complainant does not attend to give oral evidence; nor is it the case that such
evidence should invariably be admitted in such circumstances. The court must consider the facts of the
individual case and decide whether admitting the evidence would so adversely
affect the fairness of the trial that it ought not to be admitted.
38. Advocate Blakeley submitted forcefully that it
would indeed be unfair in this case.
The defence would have no opportunity to test what the Complainant had
said in the 999 call or the footage.
39. I accept that this is so but in my judgment, in
the circumstances of this case, the admission of the evidence would not so
adversely affect the fairness of the proceedings that I ought to exclude
it. I would summarise my reasons
for having reached this conclusion as follows:
(i)
As stated
in R v C at [12] and DPP v Barton at [64], it is not uncommon for
this issue to arise in the context of alleged domestic abuse and the courts
have concluded that it will often not be unfair to allow res gestae
evidence to be admitted.
(ii) I bear in mind that what I am considering at
this point is res gestae evidence.
The whole thinking behind the exception to the hearsay rule in relation
to such evidence is that what the witness has said is an instinctive reaction
to the event in question without any real opportunity for reasoned reflection.
(iii) Although the evidence of the Complainant will
undoubtedly be of the first importance, it is not the only evidence in the
case. Thus, apart from the res
gestae evidence, there are the injuries to the Complainant, the
contemporaneous recording made by her on her phone of parts of the incident and
her distress during the 999 call and the footage.
(iv) I accept that the inability for the defence to
cross-examine the Complainant is a serious disadvantage for the Defendant but
he has given a full version of his case in the police interview and he will be
able to give evidence at the trial if he so wishes. Importantly, any prejudice to him can be
ameliorated by a firm direction to the Jurats that they need to take into account
in his favour the limitations in the evidence as a result of the
Complainant’s absence, namely (i) the res gestae evidence is not
given on oath, (ii) they will not have the opportunity of witnessing her
demeanour when giving evidence which is often important when assessing whether
a witness is telling the truth or not; and (iii) they will not have seen her
evidence tested by cross-examination.
40. Putting all these matters together I ruled that
the res gestae evidence should not be excluded under Article 76. I did however give directions about
editing the footage so as to ensure that it only contained the admissible res
gestae evidence together with evidence of the Complainant’s distress.
The Complainant’s witness statement
41. As already stated, it is correctly common
ground that the witness statement is not admissible as res gestae. Following my decision that the statement
is not admissible under Article 65(2)(b)
(because the Complainant is not unfit to give evidence), the only
remaining possible gateway for the admission of the witness statement is Article
64(1)(d), namely that it is in the interests of justice for the statement to be
admitted. In this connection,
Article 64(2) provides as follows:
“(2) In deciding whether a statement not made
in oral evidence should be admitted under paragraph (1)(d), the court must have
regard to the following factors (and to any others it considers relevant)
–
(a) How much probative value the
statement has (assuming it to be true) in relation to a matter in issue in the
proceedings, or how valuable it is for the understanding of other evidence in
the case;
(b) What other evidence has been,
or can be, given on the matter or evidence mentioned in sub-paragraph (a);
(c) How important the matter or
evidence mentioned in sub-paragraph (a) is in the context of the case as a
whole;
(d) The circumstances in which the
statement was made;
(e) How reliable the maker of the
statement appears to be;
(f) How reliable the evidence of
the making of the statement appears to be;
(g) Whether oral evidence of the
matter stated can be given and, if not, why it cannot;
(h) The amount of difficulty
involved in challenging the statement; and
(i) The extent to which that
difficulty would be likely to prejudice the party facing it.”
42. Advocate Blakeley submits that the prejudice to
the Defendant by not being able to cross-examine the Complainant is even
greater in relation to the witness statement, which contains in detailed
narrative form the Complainant’s version of events.
43. He referred in support to the case of McEwan
v DPP [2007] EWHC 740 (Admin).
In that case, the defendant was charged with criminal damage. There had been considerable delay and a
number of adjournments which were all attributable to the prosecution. On the day of the adjourned trial, the
prosecution applied for a further adjournment on the ground of the absence of
two witnesses but this was refused.
The prosecution then applied for, and was granted by the magistrates,
leave for the witness statement of one of the absent witnesses, C, to be
adduced under section 114(1)(d), the equivalent of Article 94(1)(d). The defendant was convicted. On appeal to the Divisional Court by way
of case stated, it was argued that C’s witness statement should not have
been admitted.
44. It is clear from the judgment that the court
was singularly unimpressed with the prosecution’s conduct of the
proceedings which it said painted a “lamentable picture”. The court said at [18] that the “safety
valve” of the interests of justice gateway was there to prevent
injustice. It would have to be an
exceptional case for it to be relied upon, as in that case, to rescue the
prosecution from the consequences of its own failures. The court held that the witness
statement of C had been wrongly admitted and quashed the conviction.
45. I was not referred to any other cases on this
topic by counsel, but two cases referred to in Archbold at 11-3(e) are, in my
view, of assistance. In Z v R
[2009] EWCA Crim 20, the defendant was charged with historic offences of
rape. The prosecution wished to
adduce bad character evidence, namely that the defendant had also raped a woman
‘D’ some years ago. D
was unwilling to give evidence and accordingly the prosecution sought
permission under section 114(1)(d) to adduce hearsay evidence from a doctor and
a police officer of what D had said to them about being raped by the defendant.
46. The English Court of Appeal held that the judge
had been wrong to admit this hearsay evidence. Burnton LJ, giving the judgment of the
court, said this at [20]:
“In our judgment, section 114(1)(d)
is to be cautiously applied, since otherwise the conditions laid down by
Parliament in section 116 [the equivalent of Article 65 of the Law] would be
circumvented. As Scott Baker LJ
said in O’Hare [2006] EWCA Crim 2512 at paragraph 30:
“We
think it important to point out that, as a matter of generality, section 114
cannot and should not be applied so as to render section 116 nugatory.”
But section 114(1)(d) should not be
so narrowly applied that it has no effect.
It follows that there will be cases in which hearsay evidence may be
admitted under it in circumstances in which it could not be admitted under
section 116….”
47. Burnton LJ then referred to the observation of
Hughes LJ in R v Y [2008] EWCA Crim 10 at [56] where he said:
“….the Judge must stand
back and ask whether it is in the interests of justice that the statement be
admitted. In doing so, he will of
course remember that the statute does not render hearsay automatically
admissible, and the reasons why it is not.
Put broadly, they are that hearsay is necessarily second best evidence,
and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose
word is being relied upon. That
person cannot be asked a single exploratory or challenging question about what
he said. Those very real
disadvantages of hearsay evidence, which underlay the common law rule generally
excluding it, remain critical to the assessment of whether the interests of
justice call for its admission…”
48. Burnton LJ explained the reasons for the Court
of Appeal’s decision in the following terms at [24]:
“If the judge had considered
the matters listed in section 114(2) [the equivalent of Article 64(2) of the Law quoted at
para 41 above] he would have had to consider in
particular paragraphs (a), (g), (h) and (i). As to (a), this evidence was of very
considerable importance; if accepted by the jury, it would undermine the
defence and point powerfully to a conviction. This made the other factors even more
significant, and in particular little (g).
It is important to note that paragraph (g) refers to the inability of
the witness to give evidence, not her reluctance or unwillingness,
understandable though her attitude may be.
That is consistent with the restrictions in section 116. Cases must be rare indeed in which such
significant potentially prejudicial evidence as that of D should be admitted as
hearsay where the maker of the statement is alive and well and able, although
reluctant, to testify, and her reluctance is not due to fear (i.e. the
condition in section 116(2)(e) is not satisfied).”
49. To like effect is the decision of the English
Court of Appeal in EED v R [2010] EWCA Crim 1213. This was also a case of historic sexual
offences. There were a number of
complainants including LT. They all
gave evidence. The prosecution
wished to adduce evidence from a witness ML, whom LT had told at the time about
being indecently assaulted by the defendant. ML gave a witness statement outlining
what she had been told by LT at the time but was not willing to give evidence
at trial. The prosecution applied
for and were granted leave to adduce the witness statement of ML under section
114(1)(d) as being in the interests of justice.
50. The Court of Appeal held that the statement
should not have been admitted and that the interests of justice were better
served by the exclusion of the evidence.
In passing, Pickford LJ said at [17]:
“17. This decision [Z v R] is
important because it reinforces the court’s view that it should not
countenance the use of section 114(1)(d) to circumvent the requirements of
other gateways to admissibility higher up the section 114(1) hierarchy. It is not permissible to nod through
hearsay evidence merely because it is convenient to the party seeking its
admission and the evidence is of value upon an important issue in the
trial. We note, however, that
neither the court in Z, nor the court on any other occasion brought to our
attention, has ruled that in no circumstances will hearsay evidence be excluded
(sic) [admitted?] on this ground when otherwise there would be cogent reasons
for admitting the evidence in the interests of justice. On the contrary, the terms of section
114(2)(g) read in context with the other paragraphs of section 114(2) suggest
that it is contemplated that there maybe occasions when evidence, which cannot
be given orally for reasons other than those provided for by section 116, may
be admitted….
21. Each of these decisions demonstrates, in
our view, how limited are the circumstances in which the evidence of an
available but reluctant witness may be admitted in the interests of
justice…. it is our common
law tradition that the defendant is entitled to examine the witnesses against
him and only in strictly circumscribed circumstances will a hearsay statement
be admitted in the interests of justice.
The trial judge is the gatekeeper responsible for the fairness of the
trial…and the examination of the factors set out in section 114(2) and
any other relevant factors must be performed with caution when the object is to
fill a gap caused by the non-attendance of a live witness on grounds which do
not fall within section 116.”
51. I have carefully considered the factors listed
in Article 64(2) and, in my judgment, it would not be in the interests of
justice to admit the Complainant’s witness statement in circumstances
where she is not willing to give evidence at trial; on the contrary, I consider
it would lead to an unfair trial.
52. It is understandable why res gestae is a
specific exception in the Law and at common law to the general prohibition on
hearsay evidence. It is for the
reasons set out by Lord Wilberforce and Lord Ackner in the passages from Ratten
and Andrews quoted above, namely that the pressure of the event is
dominating the thoughts of the witness such is that the possibility of
concoction or distortion can be excluded.
53. That is not so in relation to a witness
statement made in the calming presence of police officers who will be asking
questions in order to obtain the narrative story. As Lord Wilberforce put it in the
passage quoted above at para 19, a witness statement is usually made “by
way of narrative of a detached prior event so that the speaker [is] so
disengaged from it as to be able to construct or adapt his account”.
54. In these circumstances, it is all the more
important that a defendant has the ability to challenge the evidence contained
in a witness statement by way of cross-examination of the complainant. This is not only to establish how well
the evidence in the witness statement stands up to scrutiny, but also to enable
the court to assess the demeanour of the complainant as she deals with the
questions put by way of challenge.
55. Despite the importance which the courts attach
to assisting possible victims of domestic abuse as described in the passages
quoted above in R v C and Barton v DPP, all the cases to which I
was referred were dealing with res gestae evidence, with all the
inherent protections and probabilities referred to in Ratten and Andrews. The observations by the courts
quoted above about it not necessarily being unfair to admit res gestae evidence
in the absence of the relevant witness giving evidence are all dealing with res
gestae evidence.
56. Crown Advocate Hall was unable to refer me to a
case where a decision to admit the witness statement of a complainant in
relation to a sexual or domestic abuse offence under the interests of justice
gateway (as opposed to one of the specific gateways such as death, unfitness
etc) has been upheld. It seems to
me that if I were to admit the statement in the present case, it is hard to see
why such a statement should not be routinely admitted when a complainant is not
willing to give evidence. That
would not, in my view, be consistent with Art. 6 ECHR or in the interests of
justice. It would indeed be to use Article 64(1)(d) to circumvent the carefully
crafted specific exceptions in Article 65.
57. I emphasise there is no suggestion in this case
that the Complainant has been put under any form of pressure by the Defendant
not to give evidence against him.
If there were evidence of a complainant being pressurised or influenced
by a defendant to refuse to give evidence (even if this did not amount to the
complainant being put “in fear” for the purposes of the
specific gateway in Article 65(2)(e) of the Law), a court might well reach a
very different conclusion as to the fairness of the witness statement being
admitted in the interests of justice.
58. However, in the present case, I conclude that
the inability of the defence to cross-examine the Complainant in circumstances
where her witness statement would constitute the main (albeit not exclusive)
evidence against him would lead to an unfair trial. I therefore declined to admit it in the
interests of justice under Article 64(1)(d).
59. On a point of detail, I should add that the
footage of one of the police officers contained comments by the Complainant
about the events of 9 May. Such
comments were clearly not res gestae given that they were made some 24
hours after the incident of 9 May.
I therefore considered the admissibility of those comments under Article
64(1)(d). For the same reasons as
in relation to the witness statement, I declined to admit them under that
gateway. They were therefore not in
the footage which was subsequently shown to the Jurats.
Postscript
60. Following a trial in which the res gestae
evidence referred to above was admitted but the Complainant did not give oral
evidence, the Jurats unanimously found the Defendant not guilty on both counts.
Authorities
Police Procedures and Civil Evidence
(Jersey) Law 2003.
Archbold Criminal Pleading, Evidence
and Practice 2023.
AG
v McKeegan [2018] JRC 063.
R v W
(Attorney General’s reference No 1 of 2003, [2003] EWCA Crim 1286.
Wills v Crown Prosecution Service
[2016] EWHC 3779 (Admin).
DPP v Barton [2024] 2 Cr App R 15
Vilhete v
Crown Prosecution Service [2024] EWHC 2171.
McEwan v DPP [2007] EWHC 740 (Admin).
Z v R [2009]
EWCA Crim 20.
R v Y [2008]
EWCA Crim 10.
EED v R
[2010] EWCA Crim 1213.