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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 >> Dizaei v R. [2013] EWCA Crim 88 (14 February 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/88.html Cite as: [2013] WLR 2257, [2013] EWCA Crim 88, [2013] 1 Cr App R 31, [2013] 1 WLR 2257, [2013] WLR(D) 64 |
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ON APPEAL FROM SOUTHWARK CROWN COURT
Mr Justice Saunders
T20110322
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE WYN WILLIAMS
and
MR JUSTICE GLOBE
____________________
Jamshid Ali Dizaei |
Appellant |
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- and - |
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R |
Respondent |
____________________
Mr Peter Wright QC and Mr P Evans for the Crown
Hearing date: 22nd January 2013
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Crown Copyright ©
The Lord Chief Justice of England and Wales:
a) "it is important explanatory evidence,
b) it has substantial probative value in relation to a matter which
i) is a matter in issue in the proceedings, and
ii) is of substantial importance in the context of the case as a whole".
As the question whether the defendant is proved to have committed the offence or offence as alleged will always and inevitably be the issue of primary important in the trial process, and that indeed is its purpose, "a matter which is a matter in issue in the proceedings within s.100(1)(b)(i)" addresses a further or additional consideration. That is the issue in the proceedings to which the evidence of bad character, whether propensity or credibility, is directed. To be admitted, however, it must also satisfy the condition in s.100(1)(b)(ii).
When assessing the probative value of the evidence for the purposes of sub s.(1)(b) s.100(3) directs attention to a number of specific factors and, significantly in the present context, to "any others it considers relevant".
In accordance with s.100(2) evidence falling within the ambit of sub s.1(a) is evidence without which
"(a) … the court or jury would find it impossible or difficult properly to understand other evidence of the case, and
(b) its value for understanding the case as a whole is substantial".
In our view considerations like these may require to be consideration as part of the assessment of the probative value of evidence in accordance with s.100(3).
"Subject to sub-section (2) reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true".
Accordingly the judge assumed that for the purposes of the decision on admissibility the evidence of WAB's girlfriend was true. This assumption, of course, applies to the question of admissibility: once admitted the assumption of truthfulness made for the purpose of assessing admissibility would not apply to the assessment by the jury of its truth. So, if the defence was permitted to adduce evidence about the matters alleged by his girlfriend before the jury, WAB would have been entitled to deny some or all of them, and rely on any material available for this purpose.
a) that the issues of the credibility of WAB and any propensity to violence were of substantial importance to the question whether he had behaved in a threatening and violent way which justified his arrest by the appellant, and
b) provided the evidence proposed to be adduced was not merely relevant but of substantial probative value there was no discretion to exclude it.
He proceeded on the basis that a person who had been violent would be more likely to show violence in an entirely different situation to someone who had never been violent before. However violence in the context of the strength of the emotions which frequently characterise a sexual relationship, and its breakdown, does not often throw very much light on any propensity to be violent outside such a relationship. In any event the incident of alleged rape was not substantially probative of the issues which arose in the trial, and the allegations of violence in the Fudu nightclub, although marginally relevant in the sense that it had occurred in a public place, also lacked substantial probative value. This incident was not of the same level of violence that had underpinned the substantial probative value of the evidence related to WAB's violent use of the bottle at the Funky Buddah Nightclub.