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Hearsay - Admissibility of hearsay evidence - Murder

R v Rowley: Court of Appeal, Criminal Division (Lord Justice Moore-Bick, Mr Justice Kenneth Parker and The Recorder of Newcastle (Sitting as a Judge of the Court of Appeal, Criminal Division)): 3 July 2012

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Section 116 of the Criminal Justice Act 2003 (the 2003 act) provides, so far as material: '(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 of the five conditions mentioned in subsection (2) is satisfied; (2) The conditions are - ... (c) that the relevant person is outside the UK and it is not reasonably practicable to secure his attendance; (d) that relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken... (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused - (a) by the person in support of whose case it is sought to give the statement in evidence... in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).'

In January 2010, in the early hours of the morning, the deceased was assaulted outside his home. He suffered serious head injuries which were consistent with having been struck with some considerable force with a heavy object. The injuries were not consistent with a single punch. The deceased died two months later from a combination of bronchial-pneumonia and brain damage resulting from the assault. The defendant, his co-defendant, P, and another man, T, were all present in the vicinity of the deceased's home at the time in question.

After investigations, in the course of which T was interviewed by the police, the defendant and P were charged with the murder of the deceased. The defendant accepted that he had punched the deceased once, but denied having used any kind of heavy object to cause the serious injuries that led to his death. The defence case was that, although the defendant had been present at the scene of the attack, he had not inflicted serious injury on the deceased. He had punched the deceased once, spontaneously, when the deceased came towards him. Thereafter he had walked away. Following his first interview in which he had declined to answer any questions, T had subsequently been interviewed again and had given a full account of what had happened (the interview).

He had stated, inter alia, that he had seen the defendant punch the deceased once, knocking him to the ground. Further, that he was frightened of both the defendant and P. Following that interview, T had been invited to make a statement with a view to attending the trial as a prosecution witness. He had expressed his fears and had declined to do so. There had subsequently been a further failed attempt by the police to persuade T to give evidence for the prosecution. By the time of the trial, T had disappeared and the prosecution served notice of their intention to apply to adduce in evidence a transcript of what he had said in the interview in order to establish the defendant's presence at the scene of the crime (the application).

However, the defence served a defence case statement admitting that the defendant had been present at the time of the attack and, as a result, the prosecution abandoned the application. The defence had not objected to the prosecution's application, because it was thought that T's account could provide some support for the defendant's case. Accordingly, the defence subsequently applied to adduce the record of the interview, but the judge dismissed that application. He found, inter alia, that T had gone to ground and was outside the UK because he did not want to give evidence in the trial as a result of a threatening text message sent to him from the defendant (the defendant's threat).

Accordingly, the circumstances described in sections 116(2)(c) and (d) of the 2003 act had been caused by the defendant in order to prevent T from giving evidence. The record of the interview was therefore rendered inadmissible on his application by section 116(5) of the act (the ruling). The defendant was subsequently convicted of murder. His co-defendant was acquitted. The defendant appealed against conviction.

He submitted, inter alia, that the conviction was unsafe because the judge had wrongly ruled that the statements made by T in the interview were inadmissible under the 2003 act. It was common ground that the conditions in section 116(2)(c) and (d) had been satisfied. However, the defendant submitted, inter alia, that the ruling was wrong because the evidence before the court was incapable of supporting the judge's finding that T's unavailability had been caused by the defendant's threat. He further submitted, inter alia, that, even if the defendant's threat had been the cause, or one of the causes, of T's absence, it had not been sent in order to prevent T from giving oral evidence in the proceedings, since there had been no relevant proceedings in existence at the time that it had been sent. The appeal would be dismissed.

Whether the conditions rendering hearsay evidence admissible were satisfied was a question of fact, as was the question as to whether the provisions of section 116(5) of the act took effect. If the requirements of the section were not satisfied, the evidence was not admissible; admissibility did not depend upon the exercise of judicial discretion. It was sufficient for the purposes of section 116(5) that the action of the party seeking to adduce the hearsay evidence should have been an effective cause, albeit not the only cause, of the witness' absence, since to hold otherwise would significantly undermine the policy of the legislation. Although the reference to 'the proceedings' in section 116(5) had to refer to the proceedings in which it was sought to adduce the evidence, there was no reason to interpret the subsection as limited to steps taken after the commencement of the proceedings (see [21], [26], [27] of the judgment).

If the purpose of section 116(5) was to prevent the person who was responsible for the absence of the witness from adducing his evidence in the form of hearsay, it was of no relevance whether the proceedings had or had not been started at the time when the relevant acts were performed. The only question of importance was whether the acts were done in order to prevent the attendance of the witness at the proceedings (see [27] of the judgment).

On the facts of the instant case, the judge's findings of fact could not be impugned. He had been right to hold that the statements had not been admissible in support of the defendant's case. The evidence before him had been well capable of supporting a finding that the defendant's threat had been at least one of the effective causes of T's absence. He had been right to hold that the defendant's text message had been sent for the purpose of preventing T from attending the proceedings as a witness and that its effect had persisted up to and beyond the time when T had left the country (see [26], [28] of the judgment).

Simon Spence QC (assigned by the Registrar of Criminal Appeals) for the defendant; Martyn Levett (instructed by the Crown Prosecution Service) for the Crown.

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