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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Z, R. v [2009] EWCA Crim 20 (23 January 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/20.html Cite as: [2009] 1 Cr App Rep 34, [2009] 1 Cr App R 34, [2009] EWCA Crim 20, [2009] 3 All ER 1015, (2009) 173 JP 145, [2009] Crim LR 519 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE TAIN
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE GROSS
and
MR JUSTICE ROYCE
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THE QUEEN |
Respondent |
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- and - |
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Z |
Appellant |
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Gillian Etherton (instructed by the CPS) for the Respondent
Hearing date : 11 December 2008
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Crown Copyright ©
Lord Justice Stanley Burnton :
Introduction
The facts
"[This] is a straightforward application by the Crown in respect of bad character; though of course in the nature of things, in this instance it has attached to it an application, effectively, for hearsay rulings … so they are a composite of the two applications, all of which fall to be dealt with under the Criminal Justice Act 2003, and to that extent are fairly conventional applications dealing with issues that are found fairly commonly in this type of case, particularly the historic type of case."
The judge referred to the basis of the Crown's application to adduce the evidence of the Appellant's bad character, namely that it provided important explanatory evidence, went to propensity, and also corrected a false impression given by the Appellant, namely, that he was a perfectly ordinary, respectable, straightforward family man. He summarised the objections of the defence, that the allegations of D could have been dealt with by live evidence, and that the allegations of bad character had to be proved so as to make the jury sure, and that the evidence proposed was incapable of satisfying that requirement. The judge continued:
"As far as I'm concerned, the position is, on the face of it, straightforward and I propose to deal with it in the following way. I have no disquiet about the evidence in relation to the alleged improper behaviour towards [D]. It seems to me that is a perfectly straightforward case that can properly be adduced, under the provisions referred to, to enable the jury to be aware that at the same time there was a similar type of allegation being made by a different person, and on the grounds made by the Crown. That will then, in due course, be followed by appropriate observations by defence counsel to the jury about it, and by me, assuming we get to that stage, in directions relating expressly to the reservations that they might have in regard to hearsay evidence."
"Why have you been given this information, which is separate from the present matters? You have been told of these matters for two reasons. In the first place, they may be of assistance to you in deciding whether the defendant has a propensity for committing acts of sexual abuse generally or in relation to children. In the second place, the defendant is a person who in his interview, which you have before you, portrayed himself as somebody who would not do such a thing. You will need to determine whether he is giving a false impression there, and it may be that this information could be of assistance to you in deciding that question.
It is important to keep in mind that those other allegations are denied by the defendant; they never came to the court, resulting in a finding; and that information is delivered to you otherwise than from the original complainants, something about which I will comment further in a moment.
How may you use this information? You may use it to assist you to resolve the issues mentioned already , but you should have it firmly in your mind that this information alone does not prove that the defendant is guilty of the present matters, and you must not find him guilty because he has had unproven allegations made against him in the past. If you regard it as appropriate, and if you regard the Crown case as being a strong one independently of this information, then you may regard this information as supportive of the Crown case against Mr Smith. Otherwise, you must not take it into account that all."
"Although it is for you to decide what weight, if any, you attach to the above mentioned evidence, you should examine it with particular care, bearing well in mind that it does have certain limitations which I must draw to your attention. You have not had the opportunity of seeing and hearing either of these people in the witness box and of making your assessment of them as witnesses. When you do see and hear eyewitness you may get a much clearer idea of whether that person's evidence is honest and accurate. [D]'s and [Mrs Z]'s statements were not made or verified on oath. Their evidence has not been tested under cross-examination, and you have not had the opportunity of seeing how their evidence survived this formal challenge. Their complaints form only a part of the evidence and it must be considered in the light of all the other evidence in the case. He must reach your verdicts having considered all of the evidence."
The parties' contentions
"It has also to be borne in mind that if the allegations of misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete. The defendant may also be prejudiced in trying to meet it, for lapse of time and inability to pinpoint details (e.g. of time and place) may result in such allegations being hard to repel and the jury may be left thinking that there is no smoke without fire."
The evidence of the allegation of rape made by Mrs Z should not have been admitted: it was no more than an untested allegation, and of less direct relevance. Miss Ascherson submitted that this evidence could only be relevant if the jury were sure that the allegations made by D and Mrs Z were true. The hearsay evidence admitted by the judge was not capable of satisfying this burden; and in any event the summing up was defective in not making it clear to the jury that this evidence was irrelevant unless they were sure that the allegations were true. Lastly, Miss Ascherson submitted that the trial had been unfair and had infringed the Appellant's rights under Article 6 of the European Convention on Human Rights.
Discussion
(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 Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 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.
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (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 paragraph (a);
(c) how important the matter or evidence mentioned in 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;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.
"(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence."
None of these applied to D.
"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, as in Isichei [2006] EWCA Crim 1815, where it was admitted "as part of the story of a common sense series of events, the one leading from the other" and Xhabri [2005] EWCA Crim 3135, [2006] 1 Cr. App. R. 26. Both of those were very different cases from the present: the hearsay statements admitted were part of the incidents that were the subject of the trials.
"38 As it seems to us, the first and crucial issue raised by this appeal is as to what is meant in s. 114(2) by the words 'the court must have regard to the following factors'. If Mr Sinclair is correct and those words denote an obligation on a trial judge to embark on an investigation, resulting in some cases in the hearing of evidence, in order that he may reach a conclusion established by reference to each of the nine factors, it is apparent that trials are likely to be considerably elongated. Proper investigation of each of those factors, if carried out in that way, may well be a very lengthy process.
39 But do the words in the section require that course to be followed? In our judgment, they do not. They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the subsection. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant (as expressed in s.114(2) before the nine factors are listed). It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted."
55. What is now s 114(1)(d) appeared in the Commission's draft bill in a slightly different form:
'9. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if the court is satisfied that, despite the difficulties there may be in challenging the statement, its probative value is such that the interests of justice require it to be admissible.'
56. Although section 114(1)(d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because section 114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted.
…
As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, 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. …